Citation Nr: 21014485 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-44 349 DATE: March 12, 2021 REMANDED Entitlement to service connection for skin cancer is remanded. REASONS FOR REMAND The Veteran had honorable active service with the United States Army from May 1964 to June 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Among other commendations, the Veteran received the Vietnam Service Medal with one Silver Star and one Bronze Star. In December 2018 the Board reopened the claim for skin cancer, finding that the Veteran had supplied new and material evidence. The Board also remanded the claims for development and new opinions. The Veteran was afforded VA examinations in January 2019 and February 2019. Then in November 2020, the Board remanded the claim again for development and a new VA opinion. The Veteran was afforded a new VA opinion in December 2020. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. The Veteran contends that his skin cancer was caused by exposure in service to excess sun or to herbicide agents. The Veteran also contends that skin cancer was caused by or aggravated by his service-connected impairment, large cell lymphoma and mycosis fungoides. The Veteran contends that his skin cancer was caused by significant exposure to sun while in service in Vietnam and in Korea. See VA 21-4138, Statements in Support of Claim dated March 2013, December 2012, and November 2016; NOD received March 2014. As to the Veteran’s sun exposure, he said that he had very fair skin and that he worked outside in Vietnam and Korea in the sun while in service. He stated that he had more exposure to the sun while in service than any other time in his life and that he had sun burns on his arms and face several times. See NOD received March 2014, VA 21-4138 received December 2012 and March 2013. The Veteran has also provided an article stating that skin cancer can be due to cumulative sun exposure. See Web / HTML Documents received March 2014. When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Steff v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd1039, 1043-44 (Fed. Cir. 1994). The VA obtained a medical opinion in December 2020. As to direct service connection, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed service injury, event, or illness. The rationale stated that a review of the Veteran’s service records did not reveal any documentation of any event, illness, injury, or exposure that would result in squamous cell skin cancer. The examiner’s rationale that the Veteran’s records did not reveal any documentation of an event, illness, injury or exposure that would result in skin cancer is conclusory. Moreover, the Veteran reported that he had sunburns in service and that he had more exposure to sun in service than at any other point in his life. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007). The Veteran is certainly competent to report that he had sunburns in service. The Veteran was also presumptively exposed to agent orange. Both the Veteran’s lay statements of sunburns during service or exposure to agent orange could constitute an event, injury, or exposure during service. Upon remand an addendum opinion is to be provided which addresses whether there is any causal relationship (“nexus”) between the Veteran’s skin cancer and exposure to sun or herbicides agents in service, as well as, to fully address secondary service connection to include specifically aggravation. The December 2020 VA examiner failed to fully address secondary service connection and specifically aggravation. The matter is REMANDED for the following action: 1. Request a VA medical opinion by a different medical expert, than provided the last opinions, with the appropriate training and expertise to determine the nature and etiology of the Veteran’s skin cancer. Following review of the complete claims file, the examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s skin cancer is etiologically related to or caused by his service? Please consider and discuss that the Veteran states that he is very fair skinned and was exposed to a lot of sun in service in Vietnam and in Korea; that the Veteran reported he had sunburns during service; and that an article provided by the Veteran stated that skin cancer was caused by sun exposure. See Web / HTML Documents received March 2014. Please also consider and discuss that the Veteran was exposed to herbicide agents, including agent orange while serving in the Republic of Vietnam during the applicable period time period. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (b.) Then also answer, is it at least as likely as not (50 percent probability or greater) that the Veteran’s skin cancer was either: 1. caused by his service-connected anaplastic large cell lymphoma and mycosis fungoides (a non-Hodgkin’s lymphoma), OR; 2. aggravated by (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected disability, anaplastic large cell lymphoma and mycosis fungoides (a non-Hodgkin’s lymphoma)? In addressing whether the Veteran’s service-connected disability anaplastic large cell lymphoma and mycosis fungoides (a non-Hodgkin’s lymphoma) was a source of aggravation of the Veteran’s skin cancer the examiner must attempt to establish a baseline level of severity of the skin cancer prior to aggravation by the service-connected disability, if any can be determined. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 2. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.