Citation Nr: 21065992 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-02 915 DATE: October 28, 2021 REMANDED Entitlement to service connection for skin cancer on the face, basal cell carcinoma, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force from June 1967 to December 1970, including service in the Republic of Vietnam from August 1968 to September 1969. He also served in the Air National Guard of West Virginia and the U.S. Air Force Reserve. The Veteran's exposure to herbicide agents is established (presumptively). 38 C.F.R. § 3.307(a)(6). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). In September 2020 and July 2021, the Board remanded the appeal for additional development. Entitlement to service connection for skin cancer, basal cell carcinoma, of the face, to include as due to herbicide exposure, is remanded. The Veteran contends that his skin cancer of the face is caused by or the result of his herbicide exposure service. See VA Form 21-526 EZ (September 2016); NOD (September 2017); and Form 9 (January 2018). In support of his claim, the Veteran submitted medical articles discussing an association between Agent Orange exposure and nonmelanotic invasive skin cancer. See Correspondence (January 2018). He also submitted private medical evidence showing pathology findings for basal cell carcinoma, right side of nose. See Medical Treatment Record Non-Government Facility (November 2020) In September 2020, the Board remanded the appeal for, among other things, a medical opinion addressing the question of whether basal cell carcinoma had its onset in service or is otherwise related to service, to specifically include his exposure to herbicide agentsnoting no opinion had been obtained as required, citing to Combee v. Brown, 34 F.3 1039 (Fed. Cir. 1994) (service connection may be established on a direct basis for conditions not listed as presumptively associated with herbicide agent exposure) and McLendon v. Nicholson, 20 Vet. App.79 (2006) (discussing when duty to obtain a VA examination is triggered). Thereafter, in June 2021, the Veteran's representative raised a new theory of entitlement, arguing that his skin cancer of the nose was due to or the result of sun exposure, or ultraviolet (UV) radiation, during the Veteran's service in the Republic of Vietnam "in addition to Agent Orange exposure." See Appellate Brief (June 2021). Consequently, in July 2021, the Board again remanded the appeal, noting that a May 2021 VA medical opinion was incomplete ("The opinion only addressed whether basal cell carcinoma was caused by in-service exposure to herbicide agents, but did not address whether it was caused by any other in-service event, injury, disease, or disorder, including in-service exposure to sun."). See BVA Decision (July 2021). The remand instructed the originating agency to obtain a medical opinion addressing "whether the Veteran's basal cell carcinoma of the face was caused by an in-service injury, disease, or event, to include in-service sun exposure." An August 2021 medical opinion was, thus, obtained. The physician providing the opinion concluded that the Veteran's skin cancer was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale was that: "Basal Cell carcinoma did not occur due to any in service exposure or event. Prolonged sun exposure during his 27 years as property assessor is the cause of this skin cancer as his occupation required for him to work outside most days; therefore, it is less likely than not caused by an in-service event." The Board finds that medical opinion is inadequate for adjudicative purposes as, while it reflects conclusions and data, it does not provide a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given the above, remand is again required. See Barr v. Nicholson, 21Vet. App.303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Lastly, the Board observes that once again the Veteran's representative advances a new theory of entitlement in their October 2021 Appellate Brief. It is argued that the Veteran was exposed to arsenic in service and this caused him to develop basal cell carcinoma of the face. See Appellate Brief (October 2021). Verification of the alleged exposure by the originating agency shall be conducted on remand along with any other development deemed necessary. Accordingly, the matter is REMANDED for the following action: 1. If not otherwise conceded by VA, attempt to verify the Veteran's reported exposure to arsenic compounds in service, which is argued by his representative as causative of his basal cell carcinoma. See Appellate Brief (October 2021). If additional information is needed, contact the Veteran. Document all attempts to verify alleged exposure and notify the Veteran of the outcome of such attempts. If exposure is not verified, prepare a Formal Finding Memorandum documenting the steps to verify, and the results of such, to associate with the Veteran's claims file. 2. Obtain an addendum opinion from an appropriate clinician to address the etiology of the Veteran's basal cell carcinoma of the face. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The clinician should opine on the following: (a) Whether the Veteran's include basal cell carcinoma at least as likely as not (1) began during active service or (2) manifested to a compensable degree within one year after active service or (3) is related to an in-service injury, event, or disease to include (a) herbicide agent exposure, and/or (b) UV light exposure in service. Explain. (b) ONLY IF the AGENCY OF ORIGINAL JURISDICTION CONCEDES/VERIFIES the VETERAN'S EXPOSURE TO ARESENIC IN SERVICE, then address whether the Veteran's basal cell carcinoma at least as likely as not is proximately due to in-service arsenic exposure. (c) Consider the lay evidence and any medical articles submitted by the Veteran, which he believes establishes a causal relationship. (d) If another etiology is more likely the cause of the Veteran's skin cancer, this must be fully explained. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. Further, the rationale must reflect an analysis based on causation rather than association. It is noted that direct service connection requires a causal relationship (not an association) between the current disability and the in-service disease or injury. 3. Conduct any other development deemed necessary and readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.