Citation Nr: 21029382 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-55 659 DATE: May 13, 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 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. When this case was most recently before the Board in April 2021, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. In April 2021 the Board found that 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). This directive was not accomplished on remand; therefore, the issue is remanded for compliance of the directive to obtain an addendum opinion. In regards to the claim for service connection for hearing loss disability, an addendum opinion was obtained in April 2021. However, this additional, pertinent evidence has not been considered by the agency of original jurisdiction (AOJ) in conjunction with the claim currently on appeal. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial RO review of evidence submitted to the RO or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the RO initially review such evidence). Here, however, the VA addendum opinion was not submitted by the Veteran. Given the above, the evidence is not subject to automatic waiver and a supplemental statement of the case (SSOC) is required. See 38 C.F.R. §§ 19.31, 19.37 (2017). 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. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished an SSOC which addresses all evidence associated with the claims file since the March 2021 SSOC. 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.