Citation Nr: 21004684 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 10-05 072 DATE: January 27, 2021 REMANDED Entitlement to service connection for skin cancer is remanded. Entitlement to service connection for a kidney disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 to April 1970 and from September 1983 to September 1994, with additional service in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision. In September 2012 and March 2016, the Board remanded this matter for further development. 1. Entitlement to service connection for skin cancer is remanded. 2. Entitlement to service connection for a kidney disability is remanded. 3. Entitlement to a TDIU is remanded. In the March 2016 remand, the Board directed that the Regional Office conduct additional development regarding whether the Veteran was exposed to herbicide agents in service, during the Veteran’s service as an aircraft mechanic at Korat Royal Thai Air Force Base in Thailand from November 1967 to October 1968 and/or from his claimed landing in Vietnam for a few hours in February 1968 or March 1968 to pick up passengers on the way to the Philippines. The Board directed that the Regional Office obtain additional information from the Veteran regarding whether his duties placed him at or near the perimeter of the base in Korat and when and where he reportedly landed in Vietnam for a few hours during service. The Board instructed that the Regional Office should request that the appropriate military agency make a formal finding for the record as to whether the Veteran was exposed to herbicide agents during service after taking all necessary steps to attempt to confirm the Veteran’s reports, including obtaining flight logs or unit histories to the extent feasible. In accordance with the Board remand, the Regional Office obtained statements from the Veteran regarding his reported herbicide agent exposure. In July 2017, the Veteran reported that he stopped at Danang Air Force Base in order to pick people up when he flew from Thailand to Clark Air Force Base in the Philippines for R&R in March 1968 and that he got out of the airplane and stretched his legs in Danang while he waited. He reported that he tried to get additional information from another service member, but that service member believed the plane stopped in Nha Trang Air Force Base in Vietnam. The Veteran also reported that while working as an aircraft mechanic at Korat, he worked on the phase dock, flight line, and lower pad approximately 50 meters from the perimeter. He also submitted a photograph showing his living quarters in relation to the perimeter, although the photograph and labels for the perimeter are difficult to understand. Although the Regional Office obtained additional information from the Veteran, the record does not show that the Regional Office took additional steps to confirm the Veteran’s reports or obtained a formal finding for the record regarding herbicide agent exposure as required in the March 2016 remand. Accordingly, remand is warranted to conduct such development. See Stegall v. West, 11 Vet. App. 268 (1998). As to the Veteran’s claim for service connection for skin cancer, a June 2019 VA contract examiner opined the Veteran’s skin cancer is less likely than not incurred in or caused by service. The examiner explained that the Veteran was not exposed to herbicide agents as he only landed in Vietnam for a few hours during service. The examiner further explained that melanoma and basal cell carcinoma are not presumptive disabilities for herbicide agents and therefore a nexus was not established. However, if the record shows that the Veteran stepped foot in Vietnam as he reports, or regularly served near the base perimeter in Korat, the Veteran is presumed exposed to herbicide agents. If so, VA medical opinion should address the circumstances of the Veteran’s case and not rely on the fact that presumptive service connection has not been established for skin cancer. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (“To permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection.”). Once VA undertakes the effort to provide an examination or obtain a medical opinion, an adequate one must be provided or obtained. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, if the above ordered development shows herbicide agent exposure, additional VA medical opinion should be obtained regarding whether the Veteran’s skin cancer is related to service, to include his presumed herbicide agent exposure. Remand of the Veteran’s claims is also warranted to obtain outstanding treatment records. Review of the Veteran’s VA treatment records shows that the Veteran is treated by a private primary care physician (Dr. Oriel-Comenencia), dermatologist (Dr. Maimino), nephrologist (Dr. Delgado), and psychiatrist (Dr. Martinez). While the claims file contains some records from Dr. Oriel-Comenencia and Dr. Delgado in 2007, VA treatment records note continuing treatment until 2018. See, e.g., September 2018 VA Treatment Record. These records are potentially relevant to the Veteran’s claims. The Veteran’s claim for TDIU is based partly on the functional impairment from his service-connected psychiatric disability and the Veteran and his spouse recently reported that his disability has worsened since the last VA examination. See June 2019 Veteran’s Statement; September 2020 Veteran’s Spouse’s Statement. In September 2020, the Veteran’s private psychiatrist reported treating him since 2013. See September 2020 Private Psychiatrist Letter. Accordingly, remand is appropriate to obtain such records. In addition to the above, the Board notes that the Veteran’s claim for a TDIU is intertwined with his service connection claims. The Veteran claims entitlement to a TDIU as due to his service-connected disabilities and as due to his claims seeking service connection for skin cancer and kidney disability. Accordingly, the Veteran’s claim for a TDIU will also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, including outstanding treatment records from the Veteran’s private primary care physician (Dr. Oriel-Comenencia), dermatologist (Dr. Maimino), nephrologist (Dr. Delgado), and psychiatrist (Dr. Martinez). If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any additional VA treatment records, to include VA treatment records from December 2018 to the present. 3. Take any appropriate development (including obtaining flight logs, flight manifests, and unit histories to the extent feasible) to determine: (a) whether the Veteran landed at Danang Air Force Base or Nha Trang Air Force Base in Vietnam in February 1968 or March 1968 on the way to Clark Air Force Base in the Philippines; and (b) whether the Veteran’s duties during his service at Korat RTAFB regularly placed him at or near the base perimeter, including advising as to: Whether the Veteran’s job as an aircraft mechanic involved duties at or near the base perimeter; Whether the phase dock, flight line, and lower pad were near the base perimeter; and Whether the Veteran’s “hootch” type housing was near the perimeter. All efforts to obtain this evidence should be documented in the claims file. After completion of any appropriate development, obtain or prepare a Formal Finding for the record. 4. After obtaining outstanding records to the extent possible, and only if the Veteran has been found to have herbicide agent exposure in service, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. If the Veteran has been found to have herbicide agent exposure in service, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s skin cancer disability is related to service, to include the presumed herbicide agent exposure. If the Veteran has been found to have herbicide agent exposure in service, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s kidney disability is related to service, to include the presumed herbicide agent exposure. The examiner should consider all medical and lay evidence of record. The examiner must provide a complete rationale for any opinion based on the examiner’s medical expertise, medical principles, and the evidence in the claims file. The mere fact that a presumption for service connection purposes has not been established for the particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the particular circumstances of the Veteran’s case. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After the above development, and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.