Citation Nr: 21065974
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 07-05 092
DATE: October 28, 2021

REMANDED

Entitlement to service connection for skin cancer, to include as secondary to service-connected chronic tinea type rash or herbicide agent or radiation exposure, is remanded.

Entitlement to service connection for a structural gastrointestinal disability, to include adenomatous colon polyp, diverticulosis, and diverticulitis, to include as due to herbicide agent or radiation exposure, is remanded.

REASONS FOR REMAND

The Veteran had active service in the United States Air Force from September 1959 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 (colon cancer) and October 2014 (skin cancer) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

Regarding the colon cancer claim, the Veteran testified before a Decision Review Officer (DRO) in December 2007. In June 2009, he testified before the undersigned at the Huntington RO. In August 2009, February 2013, November 2014, and in March 2016, the Board remanded the claim for further development, and the claim for skin cancer was part of the 2016 remand for scheduling of a hearing. That hearing was also held before the undersigned in February 2017, and his skin cancer claim was also remanded in June 2017. Both claims were remanded again in June 2020.

The Board notes that the Veteran presented for a VA examination in July 2020. During that VA examination the examiner opined that the Veteran did not, nor has he ever had, colon cancer. Instead, he diagnosed the Veteran with adenomatous colon polyp, diverticulosis, and diverticulitis, noting that the Veteran had adenomatous polyp with carcinoma in situ, which situ cells are not malignant or cancerous and does not constitute a diagnosis of colon cancer, and this is consistent with the Veteran's medical records.  Thus, the Board has recharacterized the Veteran's claim as reflected on the title page to include consideration of all appropriate diagnoses related to the Veteran's claimed colon cancer. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009).

1. Entitlement to service connection for skin cancer, to include as secondary to service-connected chronic tinea type rash, is remanded.

2. Entitlement to service connection for a gastrointestinal disability, to include as due to herbicide agent or radiation exposure, is remanded.

The June 2020 Board remand specifically directed that the Veteran's claims be referred to the Under Sectary for Benefits per 38 C.F.R. § 3.311(c) if there was an unfavorable nexus opinion received regarding the same, and there was, but the claim was not referred to the Under Secretary. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the claims should be referred to the Under Secretary for Benefits.

The matters are REMANDED for the following action:

Refer both claims (skin cancer and structural gastrointestinal disability, to include adenomatous colon polyp, diverticulosis, and diverticulitis) to the Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c).  For purposes of rendering an opinion, the Under Secretary is advised that the Board concedes exposure for typical for Air Force personnel, which is well "below 100 mrem in a year."  See September 2011 Memorandum from the Department of the Air Force.

 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. J. Rogers, 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.