Citation Nr: A21020385 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 190910-31050 DATE: December 22, 2021 REMANDED Service connection for a skin disability, to include cancer, psoriasis, and dermatitis, is remanded. REASONS FOR REMAND 1. Service connection for a skin disability, to include cancer, psoriasis, and dermatitis, is remanded. The Veteran served on active duty in the United States Navy from August 1955 until his honorable discharge in March 1958. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b); 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from an August 2019 decision of a Regional Office of the United States Department of Veterans Affairs, which continued denial of service connection for skin cancer. The Board received VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) on September 10, 2019, from the Veteran as to the August 2019 decision on appeal, wherein he elected the Board Hearing docket. The Board Hearing docket provides the Veteran the opportunity to testify before the Board and submit additional evidence within 90 days of the Board hearing. In December 2019, the Veteran testified at a Board hearing before a Veterans Law Judge. The requisite 90-day period has expired, and the Board may proceed to adjudicate the claim. The Board's review of the record is limited to the evidence of record at the time of the VA Regional Office's August 2019 decision and the evidence submitted within the 90-day period, of which there is none. 38 C.F.R. §§ 20.300, 20.302. Any findings favorable to the Veteran made by the VA Regional Office in notification of a decision are binding on the Board unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. 38 C.F.R. § 20.801(a). "Findings" means "conclusions on questions of fact and application of law to facts made by an adjudicator concerning the issue under review." Id. First, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran's supplemental claim, filed July 25, 2019, only claimed service connection for skin cancer. But based on the evidence of record, the Veteran's medical diagnoses also include dermatitis, psoriasis, and lesions. The record reasonably raises the claim that these skin conditions may be associated with his skin cancer and related to his military service. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). Therefore, the Board is expanding the Veteran's claim for service connection for skin cancer to a broader claim for service connection for a skin disability, to include cancer, psoriasis, and dermatitis. Second, the Board observes the Veteran filed an initial claim for service connection for skin cancer in August 2018, which the VA Regional Office denied in November 2018. The Veteran did not appeal that decision, rather he filed a supplemental claim in July 2019, within one year of the VA Regional Office's decision. In doing so, his supplemental claim is considered part of the initial claim, thus preserving a potential earlier effective date. Still, in order to succeed on a supplemental claim, the Veteran must submit new and relevant evidence before VA may address the merits of the claim. 38 U.S.C. § 5108(a) ("[if] new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record."). In this case, the Board finds that VA Regional Office's August 2019 decision considered the additional evidence submitted by the Veteran in connection with his supplemental claim and ruled on the merits of his claim. Accordingly, the Board finds that the VA Regional Office implicitly made a finding in the Veteran's favor that new and relevant evidence was provided as a matter of law. The Board is bound by this favorable finding. Accordingly, the issue of new and relevant evidence is not before the Board. The Board may adjudicate the claim on its merits. Third, in the context of an appeal under the VA Claims and Appeals Modernization Act (AMA), 84 Fed. Reg. 2449 (Feb. 7, 2019), if the Board identifies a duty-to-assist error that existed at the time of the rating decision on appeal and cannot grant the maximum benefit for the claim, the Board "shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication." 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 3.2601(g); see also 38 C.F.R. § 20.802(a) (Board's duty to remand for error correction). In this case, the Board finds that the Veteran has not been afforded a VA examination in connection with his claim for service connection for a skin disability even though he has medically diagnosed skin conditions and has asserted in-service sun exposure as part of his service at Guantanamo Bay detention camp. At this time, the failure to provide the Veteran with a VA examination to address the etiology of his skin disabilities is a duty-to-assist error requiring remand. Accordingly, the matter is REMANDED for the following actions: 1. Obtain a VA examination from an appropriately qualified clinician to provide an opinion addressing the onset and etiology of the Veteran's skin disabilities. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Please identify all skin conditions that the Veteran currently has and has been diagnosed with during the pendency of his claim, since approximately August 2018. The examiner is informed that the requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). (b.) For each identified skin condition, if any, whether it is at least as likely as not (50 percent probability or more) that the respective skin condition had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include as due to sun exposure at Guantanamo Bay detention camp during active military service. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) The Veteran's military records, which reflect service at Guantanamo Bay detention camp between November 1956 and May 1957. (b.) His December 2019 Board hearing during which he testified that he requested ointment for his skin while serving at Guantanamo Bay detention camp, but it was not recorded within his in-service medical records; his testimony about his sun exposure in service; and his testimony about receiving skin care treatment about five to seven years following service. (c.) A Skin Diseases Disability Benefits Questionnaire completed by a private physician (received by VA on July 25, 2019). (d.) The Veteran's private medical records documenting various skin condition diagnoses, treatments, and surgeries. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his skin conditions, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a skin condition in service or the assertion that an in-service event, injury, or illness led to current skin conditions. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner determines that a condition was "acute" rather than "chronic," the examiner should explain how he or she came to that conclusion, which may include a discussion of what evidence the examiner would expect to see if a condition were "chronic," and the significance of the conclusion. If the examiner relies on medical treatises, the examiner should identify the treatises. (Continued on the next page) If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.