Citation Nr: 21022578 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 20-15 509 DATE: April 16, 2021 REMANDED Entitlement to service connection for skin cancer on head and nose is remanded. Entitlement to service connection for scar on head and nose is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1964 to October 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Initially, the Board notes that the Veteran’s power of attorney submitted a statement on March 23, 2021 indicating the Veteran is withdrawing his appeal. This included a statement from the Veteran stating he wished to cancel his May 2021 Board hearing. The United States Court of Veterans Appeals (“Court”) has held that a report of contact was insufficient evidence to establish that a claim had been withdrawn in Warren v. McDonald, 28 Vet. App. 214 (2016). In Warren, the Court emphasized that withdrawal of an appeal is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. The Court found that a report of contact form was not sufficient evidence to establish a withdrawal because the VA employee spoke to the appellant over telephone and there was considerable evidence that the appellant did not intend to withdraw his claim, but rather, intended to remove his claim from the decision review officer (DRO) process. The Court noted that considerable evidence included a statement that he was withdrawing his request for DRO review and instead requesting a Board hearing, a statement reiterating his desire for a Board hearing, a report of information noting that he desired a Board hearing and was unsure if this was stated on the substantive appeal as it only referenced a withdrawal of the claim from the DRO process, a letter accompanying supporting medical evidence with a notation that the evidence was in support of his pending claim, and hearing testimony that the appellant did not intend to withdraw his claim. Having reviewed the two statements, the Board finds that, although the withdrawal in question was made by the Veteran’s power of attorney, there is plausible basis in the Veteran’s own statement of evidence limiting his withdrawal request only to the May 2021 Board hearing. As such, the Board has jurisdiction over the issues on appeal and will proceed without a hearing. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). 1. Entitlement to service connection for skin cancer on head and nose and entitlement to service connection for scar on head and nose are remanded. The Veteran contends service connection is warranted for skin cancer and scars on his head and nose. The Veteran submitted two private medical opinions which speculate about a possible relationship between the Veteran’s exposure to Agent Orange during active service and his current skin disabilities. The Board gives these opinions little probative weight. The Veteran underwent a September 2017 VA examination. The examiner opined that the Veteran’s diagnoses of basal cell carcinoma, actinic keratosis, squamous cell carcinoma are separate conditions from his service-connected seborrheic dermatitis. She explained that they do not represent a progression of seborrheic keratoses. The VA examiner stated that basal cell carcinoma and squamous cell carcinoma were past diagnoses with surgical treatment. The examiner did not provide an opinion whether the Veteran’s skin disabilities are caused by active service, to include exposure to Agent Orange. The Board notes that the Veteran did not contend his claimed skin disabilities were related to his service-connected seborrheic keratoses. However, the RO requested an addendum opinion discussing the relationship, if any, between skin cancer and seborrheic keratoses. When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In providing an opinion, the examiner did not opine whether the Veteran’s service-connected disability aggravated the claimed conditions. See El-Amin v. Shinseki, 26 Vet. App. 136, 141 (2013). Consequently, the Board finds that it is necessary to remand the Veteran’s claims in order to obtain these opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to a total disability rating based on individual unemployability is remanded. A review of the claims file shows that the Veteran is in receipt of Social Security Administration (SSA) benefits. However, there is no indication VA attempted to obtain any medical records in SSA’s possession. Records pertaining to his application for, and any award of, SSA disability benefits are not in his VA record. Because they are constructively of record, and because the Board is unable to find that such records would not be relevant, they must be sought on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment. 2. Ask the Veteran to identify all private providers of evaluations or treatment he has received for his claimed disabilities (records of which are not already in the record) and to provide the authorizations necessary for VA to secure for the record complete clinical records from the providers identified. 3. Secure for the record from SSA complete records pertaining to the Veteran’s claim for SSA disability benefits, including any determination made and all evidence considered in connection with the determination. If the records are unavailable, the reason for their unavailability must be noted in the record. 4. Schedule the Veteran for a VA examination for his skin cancer of the head and nose, and scar of the head and nose. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is it at least as likely as not that the cancer of the head and/or nose (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Is skin cancer of the head and/or nose at least as likely as not related to service, including Agent Orange exposure? Are scars of the head and/or nose at least as likely as not related to service, including Agent Orange exposure? Is skin cancer of the head and/or nose at least as likely as not proximately due to service-connected seborrheic keratosis? Is skin cancer of the head and/or nose at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected seborrheic keratosis? The examiner is advised that a negative opinion cannot be based solely on the fact that the claimed disabilities are not on the list of diseases that are presumptively associated with exposure to herbicide agents. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.