Citation Nr: 21015101 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-09 613 DATE: March 16, 2021 REMANDED Entitlement to service connection for brain tumors, to include as due to exposure to herbicide agents is remanded. Entitlement to service connection for basal cell carcinoma, to include as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from January1968 to January1971, to include service in the Republic of Vietnam. This matter was previously before the Board in January 2018 and October 2019 where it was remanded for further development. As part of the Board’s October 2019 remand directives, the Agency of Original Jurisdiction (AOJ) was instructed to obtain outstanding medical documents and medical opinions relating to the Veteran’s service connection claims. The matter has returned to the Board for further appellate review. 1. Entitlement to service connection for brain tumors, to include as due to herbicide agents exposure is remanded. 2. Entitlement to service connection for basal cell carcinoma, to include as due to herbicide agents exposure is remanded. The Veteran contends that his claimed disabilities of basal cell carcinoma and brain tumors as related to service to include exposure to herbicide agents while serving in Vietnam. Following the Board’s October 2019 remand directives, the Veteran was afforded an examination for his brain tumors and basal cell carcinoma disabilities in January 2020. With respect to the Veteran’s brain tumors, the January 2020 examiner noted that the condition has improved since surgery but that residual symptoms include peroneal nerve dysfunction-impairs foot eversion. The examiner opined that it was less likely than not that the Veteran's brain tumors began in or were related to his time in active service, regardless of his exposure to herbicide agents. The examiner’s rationale was that the earliest that brain tumor appeared in the Veteran's medical records was in August 2011, which was about four decades after the Veteran left active service. The examiner further noted that the condition is not currently recognized by the VA or the available medical literature to be related to herbicide exposure. The Board finds this opinion inadequate to properly adjudicate the Veteran’s service connection claim. First, the Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). Second, the examiner seems to rely on the fact that VA does not recognize presumptive service connection for the condition at the time so therefore there could be no link between herbicide agents and the development of brain tumors. As discussed by the United States Court of Appeals for Veterans Claim (Court) a medical opinion that employs such reasoning is inadequate on its face. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see Polovick, 23 Vet. App. at 55 (finding that the Board provided inadequate reasons or bases for relying on a medical opinion that was based solely on the fact that this disease is listed in the Limited Evidence of No Association category in an earlier NAS report without addressing the veteran's risk factors and the unique presentation and development of the veteran's brain tumor). Accordingly, the Board finds that the claim of service connection for brain tumor must be remanded to obtain another medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). With respect to the Veteran’s basal cell carcinoma, the January 2020 examiner opined that it was less likely than not that the Veteran's basal cell carcinoma began in active service or was related to his time in active service, regardless of his herbicide exposure. The examiner’s rationale was that the earliest that basal cell carcinomas appear in the Veteran's medical records was in 2003, which is about three decades after the Veteran left active service. The examiner noted that basal cell carcinomas were generally due to sun exposure, among other factors, but was not recognized by VA or the available medical literature to be related to herbicide exposure at this time. Regarding the theory of secondary service connection, the examiner opined that the claimed condition was not related to the Veteran’s service-connected PTSD disability. As rationale for that opinion, the examiner stated the following: “It is less likely than not that the veteran's currently claimed skin condition is proximately due to or the result of his post-traumatic stress disorder. The veteran has been diagnosed with basal cell skin cancer (BCC), which is generally attributed to sun exposure and has no medically accepted relationship with psychological disorders. "Environmental, phenotypic, and genetic factors contribute to the development of BCC. Although exposure to ultraviolet (UV) radiation in sunlight is the most important risk factor for BCC, other established risk factors include chronic arsenic exposure, radiation therapy, long-term immunosuppressive therapy, and the nevoid basal cell carcinoma syndrome" (Wu. 2019). It is less likely than not that the Veteran's currently claimed skin condition was aggravated beyond its normal progression by his post-traumatic stress disorder. The veteran has been diagnosed with basal cell skin cancer, which is generally attributed to sun exposure and has no medically accepted relationship with psychological disorders. Supposedly there is a relationship between skin disorders & PTSD such as self-inflicted or possibly histamine-mediated skin disorders, according to the PTSD UK Organization. However, there does not appear to be any link to skin cancers.” See January 2020 C&P Examination. The Board finds this examination inadequate. The Veteran had consistently asserted that during his service in Vietnam, it was so hot that he wore only his flak jacket. See December 2012 VA 21-4138 Statement In Support of Claim. The examiner in his opinion has noted that BCC is generally attributed to sun exposure. However, the examiner did not address if this could be the case in the Veteran’s situation. In light of the foregoing inadequacies, an addendum medical opinion is warranted. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who may possess additional information relevant to any of his claims on appeal. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. 2. After completing Action 1 above, forward the Veteran's claims file to a qualified medical professional to obtain an addendum opinion as to the nature and etiology of the Veteran's basal cell carcinoma. If the clinician determines that an examination is necessary, one should be scheduled. After reviewing the record, the VA examiner should provide an opinion as to the following: (a) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's basal cell carcinoma is causally related to his active duty service or any incident therein, to include exposure to sun and/or herbicide agents. The clinician should specifically address the Veteran's contention that it was so hot that he only wore was his flak jacket. (b) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected PTSD either caused or aggravated the Veteran’s basal cell carcinoma. A full and complete rationale for all opinions expressed is required. 3. After completing Action 1 above, forward the Veteran's claims file to a qualified medical professional to obtain an addendum opinion as to the nature and etiology of the Veteran's brain tumor and residuals thereof. If the clinician determines that an examination is necessary, one should be scheduled. After reviewing the record, the VA examiner should address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's brain tumor is causally related to his active duty service or any incident therein, to include exposure to herbicide agents. (b.) A full and complete rationale for all opinions expressed is required. Regardless of whether the clinician's opinion is favorable or negative, support for his/her opinion that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming the opinion must be set forth. 4. After undertaking any other development deemed appropriate, re-adjudicate the issues on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.