Citation Nr: 21026890 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-23 304A DATE: May 4, 2021 REMANDED Entitlement to service connection for skin cancer, to include residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1968 to October 1969, to include combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was remanded in September 2018 and May 2020 for additional development, and has now returned for further appellate review. 1. Entitlement to service connection for skin cancer, to include residuals, is remanded. The Veteran is seeking service connection for residuals of skin cancer which he contends is etiologically related to herbicide exposure during active duty service. While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim can be decided. Initially, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the May 2020 remand decision, the Veteran received a VA examination in January 2021. The examiner was directed to specifically address the Veteran's lay statements, as well as treatment records that noted skin cancer, including basal cell carcinoma. In the January 2021 examination report, the VA examiner opined that it was less likely than not that the Veteran's skin cancer was etiologically related to herbicide exposure, explaining that medical literature does not indicate a clear connection of skin cancers with herbicide exposure. No further discussion or explanation was provided. The examiner failed to discuss and address the Veteran's lay assertions regarding his diagnosed skin cancer. Further the Board notes that the examiner stated that the Veteran had not received any treatment for skin conditions within 12 months of the examination, however, VA treatment records and the Veteran's lay statements show that he underwent biopsies for skin cancer in January and December 2020. Accordingly, the Board finds this examination to be inadequate for determining entitlement to service connection for skin cancer and related residuals. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the nature and etiology of his skin cancer, to include any residuals. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Obtain a detailed history of any and all diagnosed skin cancer, including basal cell carcinoma. (b.) For all current and past diagnosed skin cancer and residuals, the examiner must opine as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each skin cancer condition, and any residuals, had its onset in or is related to service, to include exposure to herbicide agents. If a VA examination proves not feasible for any reason, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner should address the Veteran's lay statements, as well as treatment records that noted skin cancer, including basal cell carcinoma. In considering whether herbicide exposure caused the Veteran's skin cancer, to include residuals, please keep in mind that the mere fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs an opinion as to the likelihood that the Veteran's skin cancer, to include residuals, without regard to the conditions VA recognizes as being due to herbicide exposure, was nevertheless at least as likely as not related to his exposure to herbicides in Vietnam. (Continued on next page) The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.