Citation Nr: 21070888 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-12 430 DATE: November 26, 2021 REMANDED Entitlement to service connection for basosquamous cell carcinoma, to include as secondary to exposure to a herbicide agent is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1964 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In January 2021, the Veteran and his daughter testified before the undersigned. A transcript of the hearing is of record. The Board remanded the appeal to the AOJ for additional development in March 2021. However, for reasons outlined in detail below, the Board finds that the appeal must again be remanded in order to afford the Veteran every consideration. The Board notes that Veteran had submitted a supplemental claim for his service connection claim for basosquamous cell carcinoma in November 2019. VA issued a supplemental rating decision in May 2020, and the Veteran filed a VA Form 10182 notice of disagreement for that claim. However, VA issued the May 2020 supplemental rating decision in error. The Veteran's service connection claim for basosquamous cell carcinoma was already on appeal as the Veteran had filed a VA Form 9 in February 2018. As such, the appeal was already docketed in the legacy appeal system. In April 2021, the Board dismissed the erroneously docketed appeal. If the Veteran wishes to opt into the Appeals Modernization system, he may do if the claim continues to be denied and a supplemental statement of the case (SSOC) is issued on remand. 1. Service connection for basosquamous cell carcinoma The Veteran contends that his basosquamous cell carcinoma is related to his service, specifically, that it was caused by his conceded exposure to a herbicide agent. In June 2017, the Veteran underwent a VA examination. The examiner opined that the Veteran's claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran was diagnosed with basosquamous carcinoma on his back in 2010. The Veteran was treated at the time with a biopsy for this skin cancer. The examiner noted there was no recurrence. The examiner stated that skin cancers in patients with increased sun exposure who have fair complexions like the Veteran are primarily due to sun exposure. In January 2021, the Veteran testified that while in service he was exposed to the sun while working on the deck of a ship. The Veteran stated that he did receive multiple sunburns while working on the deck of a ship. In March 2021, the Board remanded this matter to obtain a VA examination. The Board directed a VA examiner to determine whether the Veteran had a current skin disability to include any residuals of basosquamous carcinoma and subsequent treatment. The Board explained that a current disability is one that was present during the appellate period, in this case since May 2016. The examiner was to opine as to whether any skin disability or residual is at least as likely as not related to service, including exposure to sun in service and whether it was at least as likely as not related to in-service exposure to a herbicide. In May 2021, the Veteran underwent a VA skin diseases examination. The examiner noted that the Veteran was diagnosed with basosquamous in 2010, it was treated, was benign, with no recurrences. The examiner opined that the claimed condition was less likely than not incurred in or caused by the exposure to sun in service. The examiner reasoned that there was no evidence of complaint or treatment for sun exposure noted within the Veteran's record while in active duty. The examiner noted that the Veteran was diagnosed with basosquamous in 2010, it was treated, and was benign with no recurrences. The examiner further opined that the Veteran's basosquamous cancer was less likely than not incurred in or caused by the exposure to herbicide agents in service. The examiner reasoned that according to skingcancer.org basal cell carcinoma is caused by damage and subsequent DNA changes to the basal cells in the outermost layer of skin. The examiner noted that exposure to ultraviolet radiation from the sun and indoor tanning is the major cause of basal cell carcinoma and most skin cancers. In November 2021, the Veteran's representative submitted an informal hearing presentation (IHP). In the November 2021 IHP, the Veteran's representative citied studies that linked dioxins to skin cancers. The Veteran's representative further argued that the Veteran did not have a history of excessive sun or ultraviolet light exposure for either work or recreation since service. Further, there was no use of an artificial tanning bed use either. The Board finds that a remand for an addendum medical opinion is required. First, the May 2021 examiner's opinion was ambiguous as to whether the Veteran had a current skin disability. The Board notes that examiner repeatedly stated that the Veteran had a history of basosquamous carcinoma diagnosed in 2010 that was benign with no recurrence. The Board finds that it is still unclear whether the Veteran has a current skin disability (any disability or residuals from May 2016). Second, the Board finds that the VA examiner's reasoning that any skin disability was not related to service because the Veteran's service treatment records were silent for complaint or treatment for sun exposure is inadequate. The Board notes that a rationale relying solely on an absence of medical records is insufficient. The examiner also failed address the Veteran's statement that he had multiple sunburns while working on the deck of a ship in service, which is some evidence of sun exposure in service. Therefore, the Board finds that the May 2021 examiner's opinion is inadequate for adjudication and remand is required. Upon remand, VA must obtain an addendum opinion to determine whether the Veteran has a current skin disability. The examiner must opine whether any identified skin disability is etiologically related to service, to include the Veteran's statement that he had multiple sunburns in service. Finally, the examiner must address the Veteran's representative's November 2021 IHP, which cited studies indicating that exposure to a herbicide was related to basosquamous carcinoma. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion for the Veteran's skin disability characterized as basosquamous carcinoma. The examiner must review the claims file and provide the follow opinions: (a.) Does the Veteran have current skin disability to include any residuals of his basosquamous carcinoma and subsequent treatment? i. The Board notes that a "current disability" is a disability that was present during the appellate period (in this case any time from May 2016) even if the disability has resolved. (b.) Whether any skin disability, or residual thereof, is at least as likely as not related to service, including exposure to sun in service. i. The examiner must address the Veteran's statement that he received multiple sunburns while working on the deck of a ship. (c.) Is any skin disability or residuals thereof at least as likely as not related to in-service exposure to a herbicide agent. i. The examiner must address the cited literature in the November 2021 IHP. ii. The examiner is advised that a negative opinion cannot be based solely on the fact that the skin disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. (d.) The examiner must provide a complete medical rationale for all opinions provided. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.