Citation Nr: 21012271 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 08-39 251 DATE: March 4, 2021 REMANDED The issue of entitlement to service connection for basal cell carcinoma, left temporal area is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1963 to September 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for basal cell carcinoma. In May 2010, the Board denied the Veteran’s claim for entitlement to service connection for basal cell carcinoma, left temporal area. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2011, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board’s decision and remand the case in order to adequately develop the claim based on exposure to ionizing radiation under the provisions in 38 C.F.R. § 3.311. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. In July 2011, the Board remanded the case for further development and to obtain documentation on ionizing radiation exposure. In June 2016, the Board remanded for preparation of a dose assessment by the Under Secretary for Health as set forth under 38 C.F.R. § 3.311. In January 2018, the claim was referred to the VA Under Secretary for Health for an opinion and dose assessment. Associated with the record is a January 2019 memorandum opinion, to include dose assessment, from the Deputy Chief Consultant of the Post Deployment Health Services, as well as a January 2019 memorandum opinion by the Director of VA Compensation Service. In May 2019, the Board again denied the Veteran’s claim for entitlement to service connection for basal cell carcinoma, left temporal area. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board’s decision and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. The parties to the JMR noted that in a November 2007 letter the Veteran’s private physician stated he was “not furnished any records about the type of radiation, duration of exposure or any other information that would permit a supportable conclusion regarding cause and effect.” As a result, the Veteran’s private physician noted that he was unable to opine if the Veteran’s cancer was a result of in-service exposure because he did not have records informing him of the amount or type of exposure. Pursuant to the July 2020 JMR, the parties agreed that upon VA’s receipt of the dose estimate, it should have notified the Veteran that the estimate could be sent to the private physician. See Watai v. Brown, 9 Vet. App. 441, 444 (1996) (noting that the Secretary has a duty to inform appellant that the Secretary, upon proper authorization as required by VA regulations, would furnish copies of relevant service medical records to [the private physician] to enable him to render a less speculative opinion). Accordingly, vacatur and remand of the Board’s decision was deemed appropriate. Furthermore, the JMR noted that VA Deputy Chief Consultant, Post Deployment Health Services, submitted a dose estimate memorandum in January 2019 prepared by a health physicist. The January 2019 memorandum concluded that the Veteran’s skin cancer was diagnosed 41 years after enlistment into service; the Veteran currently did not smoke and there was no family history of cancer; and the Veteran is a Caucasian male. Evidence of record, however, notes a 1997 biopsy of a skin lesion, and a 2004 treatment record noting the Veteran has had “skin cancer in the past.” The parties agreed that the Board’s statement of reasons or bases was inadequate because the Board did not render analysis on the adequacy of the January 2019 memorandum opinion in light of the overlooked record evidence. Importantly, an advisory medical opinion shall consider not only the probable dose, but also the relative sensitivity of the involved tissue, the Veteran’s gender, his pertinent family history, his age at the time of exposure, the time-lapse between exposure and onset of his disease, and the extent to which exposure to radiation or other risk factors outside of service might have contributed to his disease. See 38 C.F.R. § 3.311(e). Here, the Board did not fully explain why the opinion was still adequate without discussion of the section 3.311(e) factors. Remand, therefore, is warranted. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (explaining that remand is the appropriate remedy where the Board provided an inadequate statement of reasons or bases); see also Allday v. Brown, 7 Vet. App. 517, 527 (1995); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The matter is REMANDED for the following actions: 1. Contact the private physician who authored the November 2007 opinion and provide the January 2019 radiation dose estimate and invite the private physician to submit another medical opinion. In the alternative, furnish the Veteran with the January 2019 radiation dose estimate such that he may provide it to his private physician himself. The Veteran should be given an appropriate time to submit such evidence. 2. Forward the claims file to the Under Secretary for Health and obtain a new advisory medical opinion that considers not only the probable dose, but also the relative sensitivity of the involved tissue, the Veteran’s gender, his pertinent family history, his age at the time of exposure, the time-lapse between exposure and onset of his disease, and the extent to which exposure to radiation or other risk factors outside of service might have contributed to his disease, in accordance with 38 C.F.R. § 3.311(e). 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.