Citation Nr: 21074237 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-67 409 DATE: December 14, 2021 REMANDED Service connection for skin cancer (basal cell carcinoma), to include as due to exposure to herbicide agents and environmental chemicals, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1959 to September 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2019. A transcript of the hearing is associated with the claims file. As a preliminary matter, the Board notes that there has been confusion related to the Veteran's representation. His most recent VA Form 21-22 names American Legion as his Veterans Service Organization (VSO) but then includes the name and email of a representative with Louisiana Department of Veterans Affairs. The Board sought to clarify his representation in both the February 2021 remand and in an October 2021 letter, but he did not respond or submit a new VA Form 21-22 as requested. Per the Board's October 2021 letter, he was notified that if he did not respond within 30 days, the Board would proceed with its review of the appeal under the assumption that he was unrepresented. The thirty-day period has since expired, and the Veteran has not submitted an updated VA Form 21-22 identifying either American Legion or Louisiana Department of Veterans Affairs as his representative. Accordingly, the Board will proceed with review of the appeal under the assumption that the Veteran is unrepresented. This matter has been remanded on three occasions, most recently in February 2021. Unfortunately, the August 2021 independent medical opinion (IMO) obtained in accordance the Board's February 2021 remand is inadequate, and the matter must again be remanded to ensure the Veteran is afforded due process of law. The Board finds the August 2021 IMO inadequate as it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The August 2021 examiner opined that the Veteran's skin cancer was less likely than not incurred in or caused by the Veteran's herbicide agent and/or other environmental exposures. In making this opinion, the examiner relied on the premise that the Veteran has/had only a solitary lesion of his left breast area, and stated that if systemic carcinogens were the root cause of his basal cell carcinoma, then it would be unusual to have only a solitary lesion as systemic exposure would lead to more extensive disease. The Board notes that the Veteran has been treated for lesions suspicious of basal cell carcinoma on his left breast, right posterior arm, and right mid nose, and the records documenting this treatment should have been provided to the examiner. See December 2018 Dermatology Note. As the IMO relies not only an inaccurate factual premise, but also suggests that more extensive disease, which the Veteran has been treated for, may indicate a relationship to systemic carcinogen exposure, an addendum opinion that reflects complete review of the Veteran's prior medical history and relies on an accurate factual premise is necessary. On remand, the examiner providing the requested IMO must review all pertinent records, specifically including the Veteran's VA treatment records and the Board's remands finding prior opinions inadequate, to ensure that they provide an accurate and adequate addendum opinion. As the August 2021 IMO relied significantly on the extensiveness of the Veteran's skin cancer, the RO is directed to obtain updated VA treatment records, as the Veteran may have been treated for lesions beyond what is documented in the current evidence of record. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from July 2021 to present. 2. DO NOT SCHEDULE THE FOLLOWING until the above VA treatment records have been associated with the claims file. 3. Obtain an addendum independent medical opinion from the examiner who provided the August 2021 independent medical opinion, or another dermatologist or similar expert if they are unavailable. The RO must follow its established procedures for requesting an advisory opinion from an appropriate expert at a medical school, university, or clinic, or request an addendum opinion from a dermatologist or similar expert. When requesting the opinion, the RO must forward all pertinent records, particularly including all records of his skin cancer treatment and all prior Board remands, to the examiner. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. After review of this remand and all pertinent records, particularly VA treatment records documenting basal cell carcinoma of the left breast area, right posterior arm, and right mid nose, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's basal cell carcinoma skin cancer is etiologically related to his active-duty service, to include his various conceded environmental and/or herbicide agent exposures. The examiner must explicitly consider: The Veteran's military occupational specialty as an aircraft mechanic and maintenance superintendent for over 21 years on B-58 and KC-135 aircraft; His conceded exposure to herbicide agents; The opinion from Dr. C.B. that his skin cancer "could be due to Agent Orange exposure"; and The August 2020 citation to medical literature that known or suspected carcinogens are due to environmental and occupational hazards, and the contention that the Veteran's basal cell carcinoma is due to sun, petroleum-based products, diesel fuel, and herbicide agent exposure during service; The examiner is reminded that the standard "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to rely on the fact that skin cancer is not included on the list of diseases associated with exposure to herbicide agents, and it is insufficient to rely on or to conclude that the Veteran's condition being normal at separation to support the opinion that the current condition is not related to service; any opinions stating such will be deemed inadequate. All opinions must be accompanied by a rationale reflecting full consideration of the evidence of record. The physician should discuss this particular Veteran's medical history. Discussion and analysis of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.