Citation Nr: 21023044 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-55 659 DATE: April 20, 2021 ISSUES 1. Entitlement to service connection for a skin disability, claimed as malignant skin neoplasm. 2. Entitlement to service connection for hearing loss disability. REMANDED Entitlement to service connection for a skin disability, claimed as malignant skin neoplasm, is remanded. Entitlement to service connection for hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1958 to October 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in April 2019. When this case was previously before the Board in July 2019, it was decided in part and remanded in part for additional evidentiary development. The matter of entitlement to service connection for malignant skin neoplasm was remanded by the Board in July 2019 and October 2020. Pertinently, entitlement to service connection for hearing loss disability was denied in the July 2019 Board decision. The Veteran timely appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020 the Court granted a Joint Motion for Partial Remand (JMPR). Specifically, the Court found that remand was required to obtain an addendum opinion that addressed whether the conceded in-service acoustic trauma caused the Veteran’s current hearing loss, even assuming findings of hearing within normal limits at separation. The issue of entitlement to service connection for hearing loss disability was remanded in February 2021. These issues have been returned to the Board for further appellate action. The Board notes that this appeal has been Advanced on the Docket (AOD) on the basis of the Veteran’s advanced age. 38 C.F.R. § 20.900 (c). The Veteran asserts that he developed malignant skin neoplasm as a result of either sun exposure or exposure to trichloroethylene (TCE) while in service. The Board notes that the Veteran filed his initial service connection claim for malignant skin neoplasm. However, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court’s decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for a skin disability, claimed as malignant skin neoplasm. This will provide the most potentially favorable review of the Veteran’s claim in keeping with the Court’s holding in Clemons. To this point, the Veteran was diagnosed with actinic keratosis in 2008, basal cell carcinoma of the right hand in 2015, and squamous cell carcinoma of the back and right mild helix in 2015. In response to the Board’s remand, an addendum opinion was obtained in February 2021 in which the examiner stated in pertinent part that the Veteran’s malignant skin neoplasm was less likely than not related to sun exposure or multiple incidents of sunburns while in service. The examiner stated that the Veteran did not have medical documentation of skin cancer which was required by pathology report to warrant a diagnosis of malignant skin cancer; therefore, no diagnosis was provided. The examiner stated that the Veteran did not have a diagnosis of malignancy; the Veteran never had a diagnosis of malignant neoplasm. In this case, the Board finds that pursuant to Clemons, an addendum should be obtained on remand to address the etiology of the diagnosed actinic keratosis in 2008, basal cell carcinoma of the right hand in 2015, and squamous cell carcinoma of the back and right mild helix in 2015. That is, the definition of a current disability includes a disability diagnosed during the pendency of the appeal. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). In regards to the claim for service connection for hearing loss disability, an addendum opinion was obtained in February 2021 in which the examiner stated in pertinent part that although he was exposed to loud noise during active duty service, there was no evidence showing that his military noise exposure aggravated his pre-enlistment condition. The Board notes that the Veteran’s July 1958 service examination does not indicate a pre-enlistment condition related to hearing. To this point, within the February 2021 addendum opinion, it was noted that the enlistment physical in July 1958 had only a whispered voice test which was not valid because it was not frequency specific. As such, the Board finds that an addendum opinion should be obtained on remand. The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the February 2021 examiner or an appropriate substitute if this individual is not available. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s skin disabilities diagnosed during the pendency of this claim to specifically include actinic keratosis in 2008, basal cell carcinoma of the right hand in 2015, and squamous cell carcinoma of the back and right mild helix in 2015 are related to sun exposure/multiple incidents of sunburns or TCE exposure while in service. A complete rationale for the opinion expressed must be included in the examination report. 2. Provide access to the electronic claims file to the February 2021 examiner or an appropriate substitute if this individual is not available. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s claimed hearing loss disability is related to his period of active duty service; to include in-service acoustic trauma. In rendering the above opinion, the examiner is asked to explain the aforenoted February 2021 statement that the Veteran had a pre-enlistment condition related to hearing loss. The examiner is also advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A complete rationale for the opinion expressed must be included in the examination report. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.