Citation Nr: 21070338 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 12-15 923 DATE: November 23, 2021 REMANDED Entitlement to service connection for a skin disorder, to include squamous cell carcinoma, actinic keratosis, and seborrheic keratosis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to December 12, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from March 1962 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2011 and November 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before the undersigned. This case was previously remanded by the Board for additional development in September 2016, June 2018, July 2019, April 2020, December 2020, and April 2021. 1. Entitlement to service connection for a skin disorder, to include squamous cell carcinoma, actinic keratosis, and seborrheic keratosis, is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks service connection for a skin condition. The record includes multiple VA examinations and etiology opinions ( November 2010, December 2017, March 2019, August 2019, October 2019, November 2020, and February 2021) evaluating the claim. These examinations confirmed diagnoses of squamous cell carcinoma, actinic keratosis, and seborrheic keratosis. However, as detailed in the prior Board decisions, the etiology opinions are inadequate. Most recently, in April 2021, the Board found a February 2021 etiology opinion was inadequate because the examiner stated sun exposure is causally related to the development of actinic keratosis and squamous cell carcinoma, but he attributed the Veteran's skin disabilities to sun exposure outside of military service rather than to his in-service sun exposure. The February 2021 examiner did not differentiate the nature of the in-service sun exposure from the out of service sun exposure and did not explain why the in-service sun exposure was less likely to cause the skin conditions. The Board remanded the claim for a new etiology opinion. If the new examiner attributed the Veteran's skin conditions to out of service sun exposure, he or she was required to fully explain why the out of service sun exposure was more likely than the in-service sun exposure to cause skin disabilities. The examiner was directed to review the Veteran's employment history and to discuss the nature of any sun exposure incurred outside of the military. The Board cautioned that "[m]erely noting that the Veteran was on active duty for fewer years than he was not on active duty will be deemed an insufficient rationale." In October 2021, a new VA etiology opinion was obtained. The October 2021 examiner opined the Veteran's skin condition (squamous cell carcinoma, actinic keratosis, and seborrheic keratosis) were less likely than not causally related to his nine years of active service, including in-service sun exposure. She discussed a scientific study, "Skin Cancer in the Military," which concluded military service was a risk factor for developing skin cancer. She noted the study did not establish a causal relationship. The examiner stated "[m]ost skin cancers are due to chronic sun exposure and skin damage." She concluded, [t]herefore, it is less likely than not that the veteran's skin cancers are due to or incurred in the specific sun exposures while in service and are more likely than not due to a lifetime of intended and unintended sun exposure." The October 2021 etiology opinion is not supported by the analysis required by the prior remand directives. The examiner infers the length of time outside of service (chronic sun exposure) is more likely the cause of the Veteran's skin disabilities. The Board specifically indicated this rationale would be insufficient to support a negative etiology opinion. The examiner did not provide the requested full explanation as to why she attributed the Veteran's skin conditions to sun exposure outside of his military service rather than to the nine years of in-service sun exposure. She did not discuss the nature of the out of service sun exposure. She did not discuss the sun exposure incurred in the Veteran's post military employment. The etiology opinion is inadequate to evaluate the claim and it fails to provide the analysis directed by the Board's prior remand. The Board regrets the additional delay, but another etiology opinion must be obtained. Id. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to December 12, 2011, is remanded. Where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed skin conditions (squamous cell carcinoma, actinic keratosis, and seborrheic keratosis) are at least as likely as not related to his active service, including in-service sun exposure. The examiner should review the entire claims file including each prior VA skin conditions examination (November 2010, December 2017, March 2019, August 2019, November 2020, June 2021, and October 2021), VA treatment records, military clinic treatment records, private medical records, the Veteran's April 2016 testimony before the Board and reports of in-service sun exposure as described in a May 2019 letter. The examiner is asked to confirm all skin conditions diagnosed over the entire appeal period. With regard to sun exposure, the examiner must address the Veteran's credible contentions that he had significant sun exposure while on active duty. If the examiner opines that any of the Veteran's skin conditions would be more likely due to sun exposure which occurred outside of the Veteran's active service period, the examiner must fully explain why this sun exposure, outside of service, would be more likely to have caused the skin condition than the sun exposure during active service. The examiner should review the Veteran's reported employment history, including his April 2016 testimony before the Board and in November 2014 testimony before the RO, and discuss the nature of any sun exposure incurred outside of the Veteran's active service. Merely noting that the Veteran was on active duty for fewer years than he was not on active duty will be deemed an insufficient rationale without an explanation for how the examiner determined the nature of the sun exposure (such as frequency, severity, etc.) outside of military service. Similarly, merely discussing the prevalence of skin conditions in the general military population will be deemed an insufficient rationale. Any rationale proffered must be based on the specific facts of the Veteran's case and not based on the population as a whole. If the clinician finds that an additional examination is required, to include for the purpose of obtaining additional information from the Veteran regarding the nature of his sun exposure in service versus the nature of his sun exposure after service, schedule such an examination. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.