Citation Nr: 21074986 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-27 826 DATE: December 16, 2021 REMANDED Entitlement to service connection for skin cancer, to include as due to herbicide, radiation, and/or sun exposure is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1966 to October 1987, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In February 2021, the Board last remanded this matter to the RO for further development. As an initial matter, the record reflects that the Veteran received a letter in September 2021 informing him that the VLJ who conducted his Board hearing was no longer available to render a decision in this case and, as such, he could request another Board hearing. The September 2021 notification letter also informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he does not want another hearing. To date, the Veteran has not indicated that he wishes to have another Board hearing. Moreover, the September 2021 letter was sent in error as the Veteran provided testimony during the April 2018 Board hearing with the undersigned VLJ, which will be considered as evidence in this decision. Entitlement to service connection for skin cancer, to include as due to herbicide, radiation, and/or sun exposure Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Unfortunately, the Board cannot make a fully informed decision on the Veteran's claim as there is no VA opinion of record concerning whether the Veteran's diagnosed skin cancer is at least as likely as not related to the combination of his in-service herbicide and radiation exposure. In this regard, while the May 2021 VA opinion addresses the Veteran's argument that his situation is unusual because he was exposed to both radiation and herbicide agents during service, the VA examiner provided separate opinions for whether the Veteran's skin cancer is related to his herbicide exposure and radiation exposure. Moreover, the July 2021 VA opinion only addresses whether the Veteran's skin cancer is related to radiation exposure in service. The lack of an opinion that addresses whether the Veteran's skin cancer is related to both his herbicide and radiation exposure is significant as the Veteran specifically asserts his private physician told him that his cancer was not caused from sun exposure, in part due to the location of his skin cancer, and that his private physician commented on his exposure to both Agent Orange and radiation. See April 2018 Board hearing transcript, pp. 7-8, 13. Accordingly, an addendum VA opinion is warranted to address this issue. Additionally, on remand, a VA examiner should address the conflicting evidence concerning the onset of the Veteran's skin cancer and if such affects whether the Veteran's skin cancer is related to his in-service radiation exposure. In this regard, the Veteran reports an onset in approximately 1988/1989 while the January 2021 VA examination lists the date of the Veteran's basal cell carcinoma and squamous cell carcinoma diagnoses as both 1989 and 2005 but also separately notes he was diagnosed in 2005. Moreover, a September 2001 private treatment record reflects that the Veteran was in for a general skin examination, had a history of "BCC", and was noted to have "SBCC." Therefore, on remand, a VA examiner should also provide a clarification opinion concerning these findings. The matters are REMANDED for the following action: 1. Review of the record indicates that the Veteran reported receiving skin cancer related treatment with Dr. Goodluck. See e.g., June 2012 Correspondence. Ask the Veteran to fill out the necessary authorization form and/or submit outstanding private treatment records from Dr. Goodluck in order for these records to be associated with the claims file. After obtaining any necessary authorization from the Veteran, all identified, outstanding records, should be obtained and associated with the claims file. 2. Then, obtain an addendum VA opinion from an appropriate medical professional, who has not previously provided an opinion in this case. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the examiner. The examiner is asked to respond to the following: (a) Provide an opinion as to the likely onset of the Veteran's skin cancer. In so doing, the examiner should ADDRESS the Veteran's reports of skin cancer in approximately 1988/1989 and the September 2001 private treatment record indicating the Veteran has a history of BCC and was assessed with SBCC. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed skin cancer is related to his conceded in-service exposure to radiation. (c) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed skin cancer is related to his conceded in-service exposure to herbicide agents. (d) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed skin cancer is related to the combination of both his conceded in-service exposure to herbicide agents and radiation together. (e) If the examiner finds that the Veteran's skin cancer is NOT related to his active service, how does that reconcile with the May 2021 VA opinion finding that the Veteran's skin cancer is related to his in-service radiation exposure based on the determination that (1) he credibly reported a diagnosis of skin cancer in 1989 and, as such, manifested the disorder within two years of active service, and (2) there are multiple well controlled studies in the medical literature involving individuals having received radiation therapy for treatment of various conditions, especially many types of cancerous growth, as well as the fact that monitoring radiologists and radiation technologists show a higher incidence of these forms of superficial skin cancers and growths? Each opinion must be fully explained with a complete discussion of the record evidence and sound medical principles. In providing the above opinions, the VA examiner must ADDRESS the Veteran's assertions that he has no family history of skin cancer and that his private physician told him that the majority of his skin cancer was not caused by what he believed to be sun exposure, noting that the locations of the skin cancer were unusual as they are in locations normally covered by clothing, and could have been caused by some form of toxins, including from Agent Orange and/or radiation. See February 2020 Correspondence. The examiner should discuss how these assertions relate to the Veteran's claim. If after consideration of all pertinent factors it remains the physician's conclusion that the opinion sought cannot be provided without resort to mere speculation, it must be stated whether the need to speculate is caused by a deficiency in the state of general medical knowledge, or by a deficiency in the record, or the physician lacks the requisite knowledge or training. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, Associate 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.