Citation Nr: 21004306 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-01 743 DATE: January 26, 2021 REMANDED Entitlement to service connection for a skin disability, diagnosed as basal cell carcinoma and actinic keratosis, including as due to exposure to an herbicide agent is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1962 to December 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2018 and June 2020, the Board remanded this claim for additional development. Entitlement to service connection for a skin disability, diagnosed as basal cell carcinoma and actinic keratosis, including as due to exposure to an herbicide agent is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the Board’s June 2020 remand, the Veteran submitted statements in November 2014 and October 2018 which described his 1971 discovery of a skin lesion, the excision of this lesion, and his recollection that the lesion was diagnosed as a basal cell carcinoma. The Board now notes the Veteran provided additional statements in May 2015 (associated with the notice of disagreement (NOD)) and in January 2016 (associated with the VA Form 9). As a layperson, the Veteran is competent to report his observable symptoms, experience of medical treatment, and medical diagnoses as explained to him. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board observed that an October 2019 VA etiology opinion had not considered the Veteran’s statements and the temporal proximity between his separation from service and the reported diagnosis of basal cell carcinoma. The claim was remanded to obtain a new etiology opinion, including a specific discussion of the Veteran’s November 2014 and October 2018 statements, In October 2020, a VA skin conditions examination was provided. The examiner confirmed the diagnosis of basal cell carcinoma and recorded the Veteran’s report that the condition was onset in 1971 when he discovered a bulging mass in his neck behind the left ear. She did not discuss the November 2014 or October 2018 statements. She opined basal cell carcinoma was less likely than not causally related to the Veteran’s active service because the separation examination of October 1970 did not indicate any skin condition and there were “no searchable records to show treatment for or diagnosis of basal cell carcinoma.” In December 2020, the examiner provided an addendum opinion. The addendum did not include any specific discussion of the November 2014 or October 2018 statements. The examiner again noted the Veteran’s report of a bulging mass in his neck in 1971. She dismissed the report and stated, “there are no searchable records to show that the Veteran had a Left bulging mass in the neck.” No other supporting rationale was provided for dismissing the Veteran’s report. The examiner included a discussion of a documented in-service 1966 excision of a sebaceous cyst and the Veteran’s medical history as listed in private treatment records. However, she did not explain how this discussion supported dismissing the Veteran’s reported medical history. Here, the examiner did not specifically discuss the Veteran’s November 2014 and October 2018 statements as required in the prior remand directive. See Stegall, supra. In addition, she dismissed the Veteran’s lay report of a 1971 a skin lesion and his recollection of a diagnosis of basal cell carcinoma without sufficient rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). An additional addendum opinion must be obtained. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician, who has not previously provided an etiology opinion in this case, regarding whether the Veteran’s current skin disability is at least as likely as not related to active service, including whether it at least as likely as not was onset during active service. The clinician should fully review the claims file and must specifically discuss the Veteran’s statements of November 2014 and October 2018 regarding his 1971 discovery of a skin lesion and subsequent treatment and diagnoses. The examiner should also review and specifically discuss the May 2015 statement associated with the NOD and the January 2016 statement associated with the VA Form 9. The examiner must fully discuss the close temporal relationship between the Veteran’s reported diagnosis of basal cell carcinoma (1971) and his separation from active service (December 1970) is providing this opinion. The clinician is advised the Veteran is competent to report his observation of skin lesions, instances of receiving medical treatment, and any medical diagnoses as they were explained to him. The absence of contemporaneous medical records, standing alone, is an insufficient reason to dismiss the Veteran’s competent reports. If the examiner dismisses the Veteran’s report of a 1971 skin lesion and diagnosis of basal cell carcinoma a complete rationale for doing so must be provided. If the clinician determines an additional examination is needed to provide the requested opinion, schedule an examination. Consider scheduling a telehealth examination, if feasible. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.