Citation Nr: 21010381 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-67 409 DATE: February 24, 2021 REMANDED Entitlement to 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 matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a May 2019 hearing. A transcript of that proceeding is associated with the claims file. By way of history, this matter, in part, was before the Board in September 2019 and October 2020, where the claim for service connection for skin cancer was remanded for further evidentiary development, to include addendum opinions as well as an opinion from an independent medical expert. However, although the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran’s appeal. First, procedurally, the Board notes that there is some confusion as to the Veteran’s current appointed representative. The most recent Power of Attorney of record dated February 2019 shows that the Veteran appointed the American Legion as his representative. However, following the October 2020 Board remand, all correspondence was copied to the Louisiana Department of Veterans Affairs, but no updated VA form 21-22 is part of the record. On remand, a letter should be sent to the Veteran asking him to clarify his current representative. Next, as noted above, the Veteran’s claim for service connection for skin cancer was remanded in 2019 for an addendum opinion; in the October 2020 Board remand, the Board found the 2019 opinion to be conclusory and not probative in value, and, therefore as part of the 2020 remand directives, the Board sought out an independent medical opinion (IMO). In November 2020, a non-VA doctor opinion was obtained, and the director of compensation submitted a statement that this was adequate for an IMO as the doctor is a non-VA examiner. However, the Board finds this opinion less probative, because although it is adequate with regards to review of records, the examiner did not provide an opinion that adequately discussed this particular Veteran’s symptoms and risk factors, but rather provided a conclusory opinion that genetics and sun exposure are the strongest risk factors in the development of skin cancer. Additionally, this contradicts the 2019 medical opinion, which included the following citations: “basal cell carcinoma occurs most often on areas of the skin that are exposed to the sun, such as your head and neck.” Here, the Veteran’s condition is on his left breast area, not an area of skin that is exposed to the sun. Further, the 2019 examiner stated “most basal cell carcinomas are thought to be caused by long-term exposure to ultraviolet (UV) radiation from sunlight… but sun exposure doesn’t explain skin cancers that develop on skin not ordinarily exposed to sunlight. Other factors can contribute to the risk and development of basal cell carcinoma, and the exact cause may in some cases not be clear.” (emphasis added). Further, the examiner’s opinion was based on the Veteran not having any lesions or skin issues in service, but the Board notes that the fact the Veteran’s condition was normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to a service injury, where, here, the Veteran’s exposure to herbicides has been conceded. Finally, although the Board specifically stated “the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required”, the November 2020 opinion was obtained from an OB-GYN, not a dermatologist or similar medical expert regarding skin cancer/conditions. It is inconceivable how the Director of Compensation Service concluded a doctor who specializes in obstetrics and gynecology has the appropriate expertise to opine on the cause of skin cancer. Therefore, on remand, the RO must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand, or a similar medical expert such as a dermatologist. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) and a VA Form 21-22a (Appointment of Individual as Claimant’s Representative), and request that he clarify his representation as to the issue currently on appeal. 2. 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 should forward all pertinent records, particularly including all available doctor visits and reports as to his skin cancer and treatment, to the examiner. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. The examiner should opine whether it is at least as likely as not (a 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 exposures. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. The examiner is asked to consider: • The Veteran’s military occupation as aircraft mechanic and maintenance superintendent for over 21 years on B-58and KC-135 aircrafts; • His exposure to herbicides has been conceded; • The opinion from Dr. C.B. who stated that the skin cancer “could be due to Agent Orange exposure.” • The August 2020 citation to medical literature that known or suspected carcinogens are due to environmental and occupational hazards, and that his exposure to petroleum-based products, diesel fuel, and herbicide exposure chemicals are the probable cause to his basal cell carcinoma. 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. Rather, the physician should discuss this particular Veteran’s disease and medical history and apply medical principles/scientific evidence to the facts of his particular case. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.