Citation Nr: 21066890 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-09 613 DATE: November 2, 2021 ORDER Entitlement to service connection for basal cell carcinoma residuals is granted. REMANDED Entitlement to service connection for a brain disability to include multiple meningiomas, claimed as the result of herbicide agent exposure, is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam. 2. Basal cell carcinoma originated during active service. CONCLUSION OF LAW The criteria for service connection for basal cell carcinoma residuals are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, .3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1968 to January 1971. He served in the Republic of Vietnam. Service Connection for Basal Cell Carcinoma Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that service connection for basal cell carcinoma is warranted as the claimed disability was incurred as the result of his tropical sun exposure while in the Republic of Vietnam. The service personnel records reflect that the Veteran served in the Republic of Vietnam. Therefore, the Veteran's exposure to the tropical sun is conceded. The report of a January 2020 skin examination conducted for the Department of Veterans Affairs (VA) states that the Veteran was diagnosed with multiple basal cell carcinoma which were excised between 2003 and 2012. The examiner commented that "the Veteran has been diagnosed with basal cell skin cancer (BCC), which is generally attributed to sun exposure." The report of a May 2021 scar examination conducted for VA diagnosed the Veteran with multiple basal cell carcinoma scar residuals. The report of a May 2021 skin examination conducted for VA states that the Veteran reported that a basal carcinoma was excised from his scalp in 1977 and he subsequently had multiple lesions removed from scalp, back, shoulder, and neck excised. The Veteran was diagnosed with a history of basal cell carcinoma. The examining nurse practitioner commented that: "although the Veteran claims exposure to sun while in Vietnam with wearing only a flak jacket because it was so hot, it is less likely than not that the Veteran's basal cell carcinoma is directly related to his exposure to sun while in Vietnam only, based on medical literature reviewed, today's examination and the current available records;" "the examiner is unable to get to a 50% threshold to give a positive opinion;" "the Veteran likely has had years of sun exposure from 1971-2003 when he was first noted to have basal cell carcinoma;" "Veteran is fair skin which is another risk factor for the development of basal cell carcinoma;" "other risk factor the Veteran has related to basal cell carcinoma include: family history of skin cancer (sister had melanoma),and being an elderly man;" and " nexus is not established." The Board of Veterans' Appeals (Board) is unable to discern why the examiner was "unable to get to a 50% threshold to give a positive opinion" and why the Veteran's in service tropical sun exposure was less a causative factor than his post service sun exposure given that he was faired skinned. Therefore, the Board finds that the May 2021 examination report is of limited probative value. The Veteran was exposed to the tropical sun while in the Republic of Vietnam. The Veteran has been diagnosed with basal cell carcinoma residuals. VA examiners have attributed the onset of the diagnosed basal cell carcinoma to risk factors including the Veteran's fair complexion and his history of sun exposure. Therefore, the Board finds that the evidence is in at least equipoise as to whether the basal cell carcinoma originated during active military service. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for basal cell carcinoma residuals is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a brain disability to include multiple meningiomas, claimed as the result of herbicide agent exposure, is remanded. In its March 2021 Remand instructions, the Board requested that the Veteran be afforded further VA evaluation to address the relationship, if any, between the diagnosed meningiomas and active service. The Board instructed the examiner to "state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's brain tumor is causally related to his active duty service or any incident therein, to include exposure to herbicide agents." The report of a February 2019 traumatic brain injury (TBI) residuals examination conducted for VA states that the Veteran "has had multiple blast exposure from land mines and mortars while in service" and "more than three" of the blasts were "severe enough to knock Veteran down or cause injury." The report of a May 2021 examination conducted for VA states that the Veteran was diagnosed with post-operative meningioma residuals. The examiner concluded that "based on the medical literature reviewed today, it is less likely than not that the Veteran's diagnosis of /p resection meningiomas with residual left upper extremity weakness, left lower extremity weakness is related to his exposure to Agent Orange." The examining nurse practitioner did not note or otherwise address the relationship between the diagnosed meningiomas and the reported in service blast injuries and/or active service in general. Therefore, the Board finds that the examination report is of essentially no probative value. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination conducted by an appropriate medical doctor to assist in determining the nature and etiology of the diagnosed multiple meningiomas and any relationship of the disability to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all brain disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that diagnosed meningiomas had their onset during active service or is related to any incident of service, including the Veteran's presumed herbicide agent exposure and reported multiple blast injuries while in the Republic of Vietnam. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.