Citation Nr: 21011002 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-27 826 DATE: February 26, 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 from October 1966 to October 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned Veterans Law Judge during an April 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). This matter was previously before the Board in April 2020, wherein the Board remanded for additional development, to include a medical opinion. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contends that his skin disabilities are due to exposure to Agent Orange or radiation, or in the alternative, due to exposure to sunlight during his military career and deployment to the Republic of Vietnam. The Veteran has confirmed service in the Republic of Vietnam from December 1967 to December 1968. In September 2018, the Board referred the matter for a VA expert opinion. In December 2019, an opinion was completed following the September 2018 Board referral. However, the April 2020 Board decision found that while the December 2019 examiner provided detailed opinions on whether the Veteran’s claimed disabilities are due to herbicide and/or radiation exposure, the examiner failed to provide an opinion as to the Veteran’s claimed disabilities on a direct basis, nor did he address the Veteran’s contention on whether herbicide exposure may have caused his skin cancer exclusive of presumptive service connection. In this regard, the April 2020 Board remand instructions requested that the examiner identify skin cancer, skin cancer residuals, or other skin condition/diagnosis identified within the claim period and to opine whether it is at least as likely as not that it is related to the Veteran’s active military service, to include his presumed in-service exposure to herbicide agents. The examiner was also requested to specifically consider and comment upon the Veteran’s contention that herbicide agent exposure and combined radiation exposure caused his skin cancer or another other identified skin condition. Additionally, the examiner was to opine as to whether it is at least as likely as not that any skin condition is related to the Veteran’s active military service, to include his multiple in-service skin complaints. Finally, the examiner was to provide an opinion whether any skin cancer or skin cancer residual at least as likely as not developed within one year of service, or that the in-service complaints were a part of the basal and/or squamous cell cancer development which developed and were diagnosed after service. In providing a medical opinion, the examiner was to consider the Veteran’s testimony regarding his skin cancers, the Veteran’s statements received in June 2012 in which he refers to medical reports submitted by Dr. V. M., and his report that his first squamous cell carcinoma was removed in 1989. A VA examination and medical opinion was obtained in January 2021 to address the deficiencies as noted in the April 2020 Board decision. The VA examiner opined that after examination of the Veteran, including physical examination and medical history, and review of the available medical records, it is his opinion that the conditions of basal cell carcinoma, squamous cell carcinoma are less likely than not (less than 50 percent probability) incurred in or caused by the Veteran’s presumed exposure to herbicide agents during his active military service. The examiner noted that these conditions are not on the list of disabilities presumptively related to herbicide agent exposure and he did consider the Veteran’s statements concerning his belief that herbicide exposure did cause his skin cancers or seborrheic keratosis. He further explained that exposure to the sun is a well-known cause of skin carcinoma and the fact that the Veteran has developed skin cancer and seborrheic keratosis in and of itself does not necessarily establish a connection to herbicide exposure any more than an individual who develops skin cancer who was not exposed to reactive herbicides during conflict or military service. The examiner concluded that it is this uncertainty that underscores this examiner’s opinion that a degree of probability greater than 50 percent cannot be established and therefore, the opinion must be in the negative. The VA examiner also opined that the Veteran’s complaints of skin conditions in service are more consistent with an allergic-type skin reaction than a symptomatic manifestation of basal cell or squamous cell carcinoma or the current seborrheic keratosis. That the Veteran was treated on at least two of these occasions with Prednisone and Benadryl supports this contestation. He concluded that after weighing the evidence and the documentation available in the medical record, this opinion is written in the negative. Here, the Board finds that the January 2021 medical opinion is inadequate as the VA examiner did not comply with the April 2020 Board remand instructions when providing his medical opinion. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board specifically requested that the examiner specifically consider and comment upon the Veteran’s contention that herbicide agent exposure and combined radiation exposure caused his skin cancer or any other identified skin condition. To this end, the examiner did indicate he considered the Veteran’s statements concerning his belief regarding herbicide exposure but made no reference to his conceded radiation exposure. Also, the VA examiner stated that exposure to the sun is a well-known cause of skin carcinoma and seborrheic keratosis and the fact that the veteran has developed skin cancer in and of itself does not necessarily establish a connection to herbicide exposure any more than an individual who develops skin cancer who was not exposed to reactive herbicides during conflict or military service. The VA examiner appeared to only address the skin cancer as to whether it was due to herbicide exposure and did not directly address whether the skin cancer was due to the Veteran’s sun exposure. Based on the deficiencies noted in the January 2021 medical opinion, and in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. The matters are REMANDED for the following action: 1. Request the Veteran to provide information about or treatment for skin cancer or skin condition from 1988 through 2001. He should be also asked to provide those records or in the alternative, provide a release so that VA can attempt to obtain those records. 2. After completion of the above, obtain an addendum opinion from the VA provider who issued the January 2021 VA medical opinion to address the claim for the Veteran's skin conditions (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify all skin disabilities during the appeal period. b) For each disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the skin disability had an onset in service or is otherwise related to the Veteran's active service, to include his presumed in-service exposure to herbicide agents, radiation, and sun. The examiner should specifically consider and comment upon the Veteran’s contention that herbicide agent exposure and combined radiation exposure, as well as sun exposure caused his skin cancer or any other identified skin condition. c) For each identified skin cancer, skin cancer residual, or other skin condition/diagnosis identified within the claim period, opine whether it is at least as likely as not that it is related to the Veteran’s active military service, to include his multiple in-service skin complaints. d) For each identified skin cancer or skin cancer residual, opine whether it is at least as likely as not that basal or squamous cell cancers developed within one year of service, or that the in-service complaints were a part of the basal and/or squamous cell cancer development which developed and were diagnosed after service. In responding to the above, the examiner must consider the following: i) The Veteran’s testimony that he has two kinds of skin cancers with over 20 confirmed cases of basal cell; was diagnosed with squamous cell cancer, and that his skin cancers began shortly after his retirement. The Veteran also reports that he was unusual in the sense that he was exposed to radiation and herbicide agents (See April 2018 Board hearing transcript at pgs. 4 to 5). ii) The Veteran’s testimony that he was exposed to the sun during his military career to include while he was stationed in Vietnam. (See April 2018 Board hearing transcript at pgs. 18 to 20). iii) The Veteran’s statement received in June 2012 in which he refers to medical reports submitted by Dr. V.M. (reports show treatment from September 2001). He also reports that his first squamous cell carcinoma was removed in 1989 along with other precancerous growths. The examiner must discuss this treatment with the Veteran and determine who treated him for these complaints. iv) Service treatment records that documented skin complaints to include urticaria in April 1982; erythema and urticarial lesion scattered over trunk in March 1982; growth on neck from September 1981; rash on back of legs documented in June 1978; and rash on forearms noted in October 1976. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.