Citation Nr: 21008685 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-02 933 DATE: February 17, 2021 ORDER Entitlement to service connection for recurrent squamous cell carcinoma of the skin due to periods of prolonged sun exposure (claimed as skin cancer) is dismissed. REMANDED Entitlement to service connection for a lung disability, to include as due to in-service asbestos exposure, is remanded. FINDING OF FACT The Regional Office granted the claim of service connection for recurrent squamous cell carcinoma of the skin due to periods of prolonged sun exposure in an April 2020 rating decision. CONCLUSION OF LAW The claim for service connection for recurrent squamous cell carcinoma of the skin due to periods of prolonged sun exposure has already been granted and the appeal of that claim is therefore dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1965 to August 1967. The claims arise from a December 2012 rating decision. The Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge in November 2015. A transcript of the hearing is of record. The claims were remanded by the Board in June 2016. 1. Entitlement to service connection for recurrent squamous cell carcinoma of the skin due to periods of prolonged sun exposure is dismissed. In June 2016, the Board remanded the claim for entitlement to service connection for recurrent squamous cell carcinoma of the skin for further development. Following the remand, in an April 2020 rating decision, the Regional Office granted service connection for recurrent squamous cell carcinoma of the skin. The Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to this issue. Given the foregoing grant of benefit in the April 2020 rating decision, there is no case or controversy for the Board to adjudicate with respect to the original claim of entitlement to service connection for recurrent squamous cell carcinoma of the skin. Consequently, the claim is dismissed. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); see also 38 U.S.C. § 7104; 38 C.F.R. § 20.101. REMAND 2. Entitlement to service connection for a lung disability, to include as due to in-service asbestos exposure, is remanded. Although further delay is regrettable, the Board finds that another remand of the lung disability claim is required. First, the Regional Office has not substantially complied with the Board's prior remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2016, the Board directed the Regional Office to develop the Veteran’s claim of in-service asbestos exposure in connection to his lung disability claim, including associating with the record a memorandum addressing the Veteran’s likelihood of asbestos exposure in service. The record contains development letters that the Regional Office had sent to the Veteran and subsequent correspondence from the Veteran stating his belief that he was “exposed to asbestos in the Navy – 1965-1967” on a ship when he worked as a shipfitter (May 2020 Veteran’s Statement in Support of Claim). However, there is no VA memorandum addressing the Veteran’s likelihood of asbestos exposure in service, in the record. There is also no formal finding by the Regional Office regarding any development done on the asbestos claim. Thus, it is unclear from the record what development of the asbestos claim has been done, if any. Therefore, the matter must be remanded for additional development. See Stegall, 11 Vet. App. at 271. Moreover, per the June 2016 Board remand, a VA etiology opinion was obtained in May 2020. However, the Board finds this opinion inadequate because the examiner opined only as to whether the Veteran had asbestosis, and if this asbestosis was related to his service. The examiner found that the Veteran did not have a diagnosis of asbestosis and that no current asbestosis could therefore be related to service. The examiner failed to address and opine on the Veteran’s noted lung conditions, including calcified pleural plaques (September 2017 VA Respiratory Conditions Disability Benefits Questionnaire) and pulmonary nodules (July 2013 VA Saginaw medical record; March 2020 private medical record), and whether they are related to the Veteran’s service. Therefore, a new medical opinion addressing these concerns must be obtained. The Board also notes that in the February 2021 Appellate Brief, the Veteran’s representative requested the Board infer a chronic obstructive pulmonary disease (COPD) claim in connection to this lung disability claim. The Board does not find a diagnosis of COPD in the Veteran’s medical records that are on file. Therefore, on remand, before any opinion is accomplished, any outstanding relevant medical records must be obtained first. Finally, in the February 2021 Appellate Brief, the Veteran’s representative also newly cited to medical literature in support of this claim. Thus, the new opining examiner should be instructed to address the medical literature cited in the Appellate Brief. To this end, the Board notes that an examiner may have an obligation to conduct further research in medical literature depending on the evidence in the record at the time of examination. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The matters are REMANDED for the following action: 1. With the assistance of the Veteran, obtain any outstanding VA or private treatment records relevant to the claim, including any diagnoses of COPD. 2. The Regional Office is instructed to: a) Review the Veteran’s statements regarding his claimed in-service asbestos exposure and take the appropriate actions to develop the asbestos exposure claims. Here, the Veteran is asserting that he was “exposed to asbestos in the Navy – 1965-1967” on a ship when he worked as a shipfitter (May 2020 Veteran’s Statement in Support of Claim). See also, e.g., November 2015 Board Hearing Transcript, p. 13 (the Veteran stated that during service, he was stationed for two years in San Diego, California, and when he was going through training as a diver, he also worked as a ship fitter, a welder, and a torch burner, removing asbestos from pipes on the LCU ship the he was on and living in, as part of its renovation. There was also burning, and he asserts that he inhaled the asbestos floating in the smoke and also slept through that condition). b) Contact the JSRRC or other appropriate entity to verify whether the Veteran was exposed to asbestos during his active military service. c) Make a specific written determination as to whether the Veteran was exposed to asbestos before, during, or after his military service, if at all. 3. After steps 1 and 2 are completed, obtain a new etiology opinion from a new examiner. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner determines that an examination must first be conducted before providing an opinion, then schedule the Veteran for an examination. For EACH and EVERY current lung disability diagnosis, to include calcified pleural plaques (September 2017 VA Respiratory Conditions Disability Benefits Questionnaire) and pulmonary nodules (July 2013 VA Saginaw medical record; March 2020 private medical record), the VA examiner is requested to address: i) Is it at least as likely as not that the Veteran's current disability had its onset in active military service? ii) Is it at least as likely as not that the Veteran’s current disability is related to any confirmed in-service asbestos exposure? iii) Is it at least as likely as not that the Veteran’s current disability is otherwise related to the Veteran’s active military service? The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner should also be specifically instructed to address the medical literature cited by the Veteran’s representative in the February 2021 Appellate Brief, which include: “In the specific case of asbestos exposure, the earliest phases of asbestos-induced pulmonary damage is peribronchiolar fibrosis and this lesion can be identified on HRCT images as minute irregular centrilobular nodules”(https://erj.ersjournals.com/content/17/6/1294) The Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos, which states: “isolated fibrotic lesions associated with asbestos resemble solitary pulmonary nodules. These are sometimes called “asbestomas” and usually occur against a background of irregular opacities. A 2–8% reduction in ventilatory capacity has been observed for cough, phlegm, and symptoms of chronic bronchitis among asbestos-exposed workers. Development or progression of respiratory symptoms has been associated with accelerated loss of ventilatory capacity in a longitudinal investigation of asbestos-exposed workers” (https://www.atsjournals.org/doi/pdf/10.1164/rccm.200310-1436ST) To this end, the Board notes that an examiner may have an obligation to conduct further research in medical literature depending on the evidence in the record at the time of examination. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.