Citation Nr: 21005759 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-09 566 DATE: February 2, 2021 REMANDED Entitlement to service connection for skin cancer, to include as a result of herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1954 to August 1993. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2017 rating decision by Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing with a Veterans Law Judge (VLJ) in April 2019. A transcript of that hearing is of record. The issue was remanded for further development by the same VLJ in January 2020. That VLJ is no longer at the Board. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c) and is returned to the Board for adjudication. 1. Entitlement to service connection for squamous cell malignant melanoma is remanded. The Veteran contends that he is entitled to service connection either because of Agent Orange exposure in Vietnam or excessive sun exposure while at sea during his 39 years of naval service or both. Notably, once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4). As noted above this issue was remanded in January 2020 for further development, to include a new VA skin examination if needed or at least a thorough review of the file and a new opinion. The previous VLJ remanded the issue because the December 2016 VA examination was inadequate for adjudication purposes. Namely, the VA examiner did not provide a full opinion regarding the etiology of the Veteran’s skin cancer that addressed all theories of service connection. The December 2016 examiner offered no opinion regarding the likelihood that the Veteran has any skin cancer, to specifically include melanoma, that is attributable to sun or herbicide exposure in service. Rather, the examiner limited his opinion to whether the Veteran’s melanoma is related to a probable basal cell carcinoma noted in service. Further, because the Veteran was treated in service for various skin disorders, and because he is presumed to have been exposed to a herbicide agent, which he contends contributed to the development of his skin cancer and other skin disorders, a medical opinion regarding the likelihood that the Veteran has any type of skin cancer or any other skin disease that is attributable to service, to include his presumed exposure to a herbicide agent was necessary to fairly adjudicate these claims. See Barr, supra; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matter was remanded to obtain new VA opinions and for further examination of the Veteran, if necessary. While the case was back at the RO, the Veteran was afforded a VA file review in combination with a video telehealth call in March 2020. The Veteran through his Service Organization’s October 2020 correspondence, shared his belief that the March 2020 telehealth VA exam is inadequate for the following reasons: The Veteran expressed that the examiner was unable to see his skin properly over the telehealth video call, that the call was too short, and that the examiner did not understand the nature of his service. The Veteran characterized his time in the Navy as practically his entire adult life spent in dry, humid and hot locations, especially during the Vietnam war era. Reviewing the March 2020 report, the Board finds that the examiner inaccurately characterized the nature of the Veteran’s level of sun exposure in service. Specifically, the examiner reported that “He says his work in the military was all administrative, and done all indoors, he says he was always indoors when doing his work.” This statement conflicts with other statements of record from the Veteran himself like those from the April 2019 Board hearing and his previous December 2016 VA examination. From the 2019 Board hearing the Veteran said, “I spent a lot of time on the decks aboard the Point Defiance, not so much aboard the Kitty Hawk, because I was working inside and running the administrative executive department.” When asked, the Veteran said, “Yes, I was on the Point Defiance from ’64 to ’65.” The Veteran’s service record confirms he was assigned to the USS Point Defiance from October 1964 to September 1965. The Veteran’s hearing statement directly conflicts with what the 2020 examiner says. The Veteran claims excessive sunlight exposure during his year of service on board the Point Defiance, which is not reflected in the VA’s 2020 medical report. His October 2020 correspondence also reported significant sun exposure aboard the USS Thaddeus Parker, USS Point Defiance, USS Kitty Hawk, and while stationed in Hawaii. The 2016 examiner also reflects a different sun exposure level than the 2020 VA examiner. He reported, “The Veteran is fair-skinned and spent considerable time at sea with exposure to U-V radiation and had extensive U-V exposure during long Navy career which ended in 1993.” Because the 2020 VA examination sun exposure opinion is based on contested statements from the Veteran which are unsupported by the record, the Board finds another opinion is necessary. The Board remanded the issue for a direct causation opinion, that was supposed to discuss and consider the Veteran’s two theories of causation; herbicide and sun exposure during service. During his April 2019 Board hearing, the Veteran reported in-service exposure to herbicide agents while serving aboard the USS Point Defiance and USS Kitty Hawk. The 2020 examiner did not discuss at all the topic of herbicide exposure and its possible impact on the Veteran’s skin cancer. The examiner also misquoted the Veteran’s level of sun exposure during service as the basis for a nexus opinion. For these reasons the Board finds the March 2020 VA examination inadequate for adjudication purposes. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board regrets the additional delay, but feels a remand is needed for another medical assessment and opinion. The matters are REMANDED for the following action: 1. Undertake appropriate action to ensure that all outstanding VA treatment records are obtained and associated with the Veteran’s claims file. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, to include this remand order, arrange for a VA examination by a VA dermatologist or other VA physician with the appropriate expertise to render an opinion regarding the likelihood that the Veteran developed skin cancer as result of service, to include his presumed in-service exposure to herbicide agents and excessive sun exposure. The physician should provide two direct service connection medical opinions, consistent with sound medical judgment. (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically related to the Veteran’s military service, to include his in-service sun exposure? The examiner must comment on the Veteran’s report of extensive sun exposure aboard the Point Defiance from ’64 to ’65 along with other sun exposure throughout his career, including but not limited to deployment aboard the USS Thaddeus Parker, duty in Hawaii and deployments aboard the USS Kitty Hawk. (b.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically related to the Veteran’s military service, to include conceded exposure to herbicide agents? Each medical opinion must be supported by a medically sound rationale statement. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.