Citation Nr: 21026387 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 12-15 923 DATE: April 30, 2021 REMANDED Entitlement to service connection for a skin disorder, to include squamous cell carcinoma, actinic keratosis, and seborrheic keratosis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to December 12, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from March 1962 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2011 and November 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before the undersigned. This case was previously remanded by the Board for additional development in in September 2016, June 2018, July 2019, April 2020, and December 2020. 1. Entitlement to service connection for a skin disorder, to include squamous cell carcinoma, actinic keratosis, and seborrheic keratosis is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks service connection for a skin condition. VA examinations, provided in November 2010, December 2017, March 2019, August 2019, and November 2020 included diagnoses of actinic keratosis, seborrheic keratosis, and squamous cell carcinoma. In December 2020, the Board remanded the claim for an additional etiology opinion to evaluate, in part, whether these skin conditions were at least as likely as not causally related to the Veteran’s nine-year period of active service, including in-service sun exposure. The Board directed the examiner to address the Veteran’s credible contentions that he had significant sun exposure while on active duty. If the examiner opined that any skin condition was more likely due to sun exposure outside of the Veteran’s period of active service, he or she was required to fully explain why this other sun exposure was more likely to have caused the skin condition rather than the in-service sun exposure. An additional VA etiology opinion was provided in February 2021. The examiner explained that actinic keratosis and squamous cell carcinoma are associated with sun exposure and genetic predisposition. He observed, “when corrected for age, sex, skin type, genetics, work-related and recreation-related sun exposure, military personnel do not have a higher incidence of any of these conditions.” He opined it is more likely than not “that chronic long term [sun] exposure in his youth prior to service through the current time, along with genetics, skin type and outdoor activities for work or recreation, are the cause of the skin damage leading to actinic keratosis and squamous cell carcinoma.” A positive etiology opinion was not indicated because “[t]he only possible way to link the conditions solely to service would require proof of no relevant sun exposure prior to service or after service.” The Board finds this opinion is inadequate. The examiner noted sun exposure is causally related to the development of actinic keratosis and squamous cell carcinoma. He then attributed the Veteran’s actinic keratosis and squamous cell carcinoma to sun exposure outside of his active service. The examiner did not differentiate the nature of this Veteran’s in-service sun exposure from his pre- or post-service sun exposure. He did not explain why, in this case, the skin conditions were less likely due to in-service sun exposure. Instead, he dismissed the in-service sun exposure because the rate of skin cancer in the general military population is not elevated over that of the general population. The full explanation, required in the Board’s remand directive, was not provided. Additionally, the examiner stated he was unable to opine whether the skin conditions were linked “solely to service.” This is not the evaluation requested or required to determine the claim. Although the Board regrets any further delay, an additional opinion as to the etiology of the Veteran’s skin disability must be obtained. Id. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to December 12, 2011, is remanded. Where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diagnosed skin conditions (squamous cell carcinoma, actinic keratosis, and seborrheic keratosis) are at least as likely as not related to his active service, including in-service sun exposure. The examiner should review the entire claims file including each prior VA skin conditions examination (November 2010, December 2017, March 2019, August 2019, and November 2020), VA treatment records, military clinic treatment records, private medical records, the Veteran’s April 2016 testimony before the Board and reports of in-service sun exposure as described in a May 2019 letter. The examiner is asked to confirm all skin conditions diagnosed over the entire appeal period. (Continued on the next page)   With regard to sun exposure, the examiner must address the Veteran’s credible contentions that he had significant sun exposure while on active duty. If the examiner opines that any of the Veteran’s skin conditions would be more likely due to sun exposure which occurred outside of the Veteran’s active service period, the examiner must fully explain why this sun exposure, outside of service, would be more likely to have caused the skin condition than the sun exposure during active service. The examiner should review the Veteran’s reported employment history, including his April 2016 testimony before the Board and in November 2014 testimony before the RO, and discuss the nature of any sun exposure incurred outside of the Veteran’s active service. Merely noting that the Veteran was on active duty for fewer years than he was not on active duty will be deemed an insufficient rationale. Similarly, merely discussing the prevalence of skin conditions in the general military population will be deemed an insufficient rationale. If the clinician finds that an additional examination is required, schedule such an examination. If feasible, schedule a telehealth examination. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.