Citation Nr: 21003004 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-40 742A DATE: January 19, 2021 REMANDED Entitlement to service connection for a skin condition, to include as due to sun and/or herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1958 to October 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Board remanded the claim on appeal for more development. Most recently, in June 2019, the Board remanded the claim on appeal for more development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Unfortunately, the Board finds that further AOJ action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. Entitlement to service connection for a skin condition, to include as due to sun and/or herbicide exposure is remanded. The Veteran contends that his skin condition is due to Agent Orange, Agent Blue, and/or sun exposure. As previously discussed in the February 2018 Board remand, exposure to Agent Orange is conceded. In November 2018, the Veteran was afforded a VA skin examination and the examiner confirmed diagnoses of basal cell and squamosus cell carcinoma (skin cancer). The examiner provided a negative etiology opinion as to both diagnoses. As a rationale for the opinion, the examiner briefly commented on the Veteran’s exposure to the sun, Agent Orange, and Agent Blue. With regard to sun exposure, the examiner explained that it is nearly impossible to divide sun exposure which is related to skin cancers into civilian and service time. With regard to Agent Orange exposure the examiner stated: herbicides have not been statistically related to non-melanoma skin cancers. Lastly, with regard to Agent Blue, the examiner explained that arsenic was well studied in many years past when psoriasis was being treated with Fowler's solution which contained arsenic. The examiner also explain that, an early sign of arsenic poisoning was small hard scattered keratotic lesions on the palma, and, on physical exam, the Veteran has no lesions on his palms. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination for the Veteran’s skin conditions. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In June 2019, the Board remanded this matter for more development. Specifically, the Board directed the examiner to provide an addendum opinion addressing the Veteran’s contention that his prolonged sunlight exposure is the cause of his skin cancer. The examiner was also directed to address the relationship between Agent Orange and the Veteran’s skin cancer, including any medical articles the Veteran has cited in his January Appellate Brief Presentations. In the June 2019 addendum opinion, the examiner stated that the Veteran’s skin conditions were caused by aging, demographics, lifestyle, post service occupation, and civilian employment. The examiner opined that it is not at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically related to service, to include herbicide exposure and/or sun exposure. As to the rationale, the examiner stated that there is insufficient evidence that the Veteran has a skin-related disability because his skin cancers have been successfully treated, and there are no residuals. However, the Board notes that there is evidence of scarring as a residual of the cancers. The examiner also noted that skin cancer is not a presumptive condition of Agent Orange exposure, and the “sun-exposure in 1968 in Vietnam was not in medical terms, not ‘a proximate factor.’” The examiner indicated that the evidence was reviewed, specifically, “the scientific, medical record, and lay statements.” The examiner stated that this evidence did not rise to the level required to opine that the Veteran’s skin condition was likely caused or aggravated by service. Finally, the examiner stated, To conclude, based on Veteran’s MOS in military service, timeline, extent of any exposure known to cause NMSC, his demographic profile, lifestyle, and a variety of skin lesions, it is the opinion of this examiner that it is less likely as not related to an in-service injury, event, or disease, including presumed exposure to herbicide agents, and sun exposure in Vietnam. Here, the examiner focused on the Veteran’s sun exposure during a four-month period but did not address the remaining 22 years of military service. The examiner did not provide a rationale as to how the examiner could differentiate the sun exposure that occurred while the Veteran was in-service to the sun exposure the Veteran had after service, particularly in light of the fact that the first cancer reportedly was removed only a few years after service. The examiner also indicated throughout the addendum opinion that all of the opinions offered were clear cut, but failed to provide a rationale as to why the Veteran’s contention that he had a continuity of symptoms, would not be related to sun exposure, or Agent Orange exposure directly, even if the Veteran was unable to obtain service-connection from a presumptive theory. Therefore, the VA examiner’s opinion regarding the Veteran’s skin disability is inadequate because the examiner did not consider all of the evidence, and the claim must be remanded to obtain an adequate opinion. Barr, 21 Vet. App. at 311. The Board also finds that additional efforts are warranted to attempt to obtain relevant treatment records. In a written statement dated in March 2015, the Veteran reported a history of having his first basil cell carcinoma removed from his neck in 1983, and then having seven surgical procedures since that time to to both basil cell and squamous cell carcinoma. The statement from the Veteran indicated that some dermatology records were attached, but no such records are in the claims file. More recently, during an examination the Veteran reported having cancer removed at Maryvale Hospital. Although the Statement of the Case indicates that the Veteran previously failed to respond to a June 2016 letter asking him to provide authorization forms to obtain such records, he stated that he had provided such authorization forms in his Appeal statement date in August 2016. Subsequent efforts to obtain records resulted in only relatively recent treatment records. In light of the foregoing, the Board concludes that further efforts to obtain the Veteran’s earlier records would be useful in resolving the issue on appeal, particularly those records from shortly after separation from service. The matters are REMANDED for the following action: 1. Attempt to obtain all treatment records pertaining to basil cell and squamous cell carcinoma dated from service separation until 2015, to include any records from Maryvale Hospital. The RO should request copies from both the Veteran and from the health care providers. 2. Then, if possible, return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the VA examiner who reviewed the file and provided the November 2018 medical opinion and June 2019 addendum opinion, hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file and a copy of this remand to another appropriate medical professional who has the requisite experience to render the requested medical opinion. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. No examination of the Veteran is necessary unless the examiner deems otherwise. 3. With respect to each diagnosed skin cancer, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically related to service, to include herbicide exposure, including Agent Orange/Blue, and/or sun exposure therein. (a.) In rendering each requested opinion, the examiner must consider and discuss all relevant in-service and post-service medical and other objective evidence. (b.) The examiner must consider and discuss the lay assertions, to include any assertions as to in-service events, and as to the nature, onset, and continuity of symptoms including but not limited to the statements listed below. If lay assertions in regard are discounted, the examiner should clearly so state, and explain why. (c.) The examiner must note and address that the Veteran’s contentions including: i. The Veteran’s contention that he was exposed to substantial sunlight while in service for 22 years. ii. The Veteran’s March 2015 notice of disagreement or statement in support of the claim indicates that his first basil cell carcinoma was removed from his neck in 1983 and since that time he has had 7 surgical procedures on his head and neck due to basil cell/squamous cell carcinoma. iii. The fact that the Veteran now wears sunscreen. 2. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 3. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 4. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.