Citation Nr: 21062241 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-24 593 DATE: October 6, 2021 REMANDED Entitlement to service connection for malignant neoplasms is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from January 1964 to January 1967. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2019 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In August 2019, the Board also remanded the issues of service connection for bilateral hearing loss and PTSD. In an October 2020 rating decision, the RO granted service connection for bilateral hearing loss and PTSD, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. Entitlement to service connection for malignant neoplasms, including basal cell carcinoma, is remanded. The Veteran contends his current skin condition is due to service. At his March 2019 Board hearing the Veteran reported that he would peel the skin off of his feet as it was rotting in service and he believed his skin conditions were due to herbicide agent exposure in Vietnam. Pursuant to the Board's August 2019 remand, the Veteran underwent a VA examination in October 2020. The examiner provided a negative opinion stating basal cell carcinoma is not a disease associated with herbicide agent exposure. However, the opinion does not provide a rationale addressing herbicide agent exposure. The examiner further based her opinion on the absence of objective evidence of injury during active duty service. However, the mere absence of treatment records should not be the primary basis for a negative opinion. When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). See also McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The record contains a current diagnosis of basal cell carcinoma. Although the Veteran's skin condition is not one of the conditions enumerated among the diseases that VA has determined are related to herbicide exposure under 38 C.F.R. § 3.309(e), the Veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994). As no adequate opinion currently exists addressing whether the Veteran's claimed disability is etiologically related to his herbicide exposure, remand for an opinion is required. The matters are REMANDED for the following action: Obtain an addendum opinion to determine the nature and etiology of the Veteran's malignant neoplasms, including basal cell carcinoma. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteranif deemed necessary by the examinerand considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (a 50 percent probability or greater) that his malignant neoplasms, including basal cell carcinoma, were incurred in, aggravated by, or etiologically related to his military service, specifically including as due to herbicide agent exposure. The examiner should specifically address the Veteran's contentions of his skin rotting, peeling, and in-service onset of skin symptoms that have persisted since that time. (Continued on the next page) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.