Citation Nr: 21029402 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-30 323 DATE: May 13, 2021 REMANDED Entitlement to service connection for a lower back disability (claimed as sciatic nerve pain) is remanded. Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for skin cancer is remanded. REASONS FOR REMAND The Veteran had active service with the Army from May 1966 to September 1976. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified in a hearing before a Veterans Law Judge. A transcript of the hearing is in the evidence of record. In February 2021, the Veteran was informed that the Veterans Law Judge who conducted the December 2019 hearing was no longer with the Board and his appeal had been reassigned. He was also informed that he had the right to request another hearing; however, no request was received. In March 2020, the Board remanded the Veteran's service connection claims for bilateral hearing loss, a lower back disability, hemorrhoids, and skin cancer for further development. A November 2020 rating decision granted service connection for bilateral hearing loss. Therefore, this claim is no longer on appeal before the Board. After a thorough review of the record, the Board finds that more development is necessary prior to final adjudication of the claim on appeal. A VA From 21-4142a was received in June 2018. The Veteran indicated there were outstanding records from the following private providers: Central Virginia Family Physicians (January 1974 to January 2010), the London Family Physicians (January 1985 to present), Dr. J.B. (January 2013 to present), and Spine and Orthopedic Rehab (January 2013 to present). In July 2018, the release to request these medical records was rejected for a missing/invalid signature date. Another VA From 21-4142a was received in February 2021. The Veteran indicated there were outstanding records from the following private providers: Central Virginia Family Physicians (January 1976 to January 2010), the New London Family Physicians (January 1985 to present), and Dr. J.B. (January 2000 to present). In February 2021, the release to request these medical records was rejected as an incomplete request missing 4142. The Board notes that the Veteran was not advised that the records request was rejected or given an opportunity to take corrective action. On remand, the RO should take appropriate steps to obtain and associate these records with the claims file. The Veteran should be provided the opportunity to complete a VA Form 21-4142 to authorize the release of information from the private medical providers he identifies. In September 2020, the Veteran underwent a VA examination for his skin cancer. The examiner opined the multiple skin cancers status post removal were less likely incurred in or caused by an event, injury, or disease during service. The examiner noted no evidence of skin cancer in his service treatment records. However, he reported a cancer spot on his right cheek removed in 2005, two on his head removed in 2019, and one on his abdomen removed in 2000. The examiner noted his VA treatment record indicated the removal of basal cell cancer in 2013 and 2015. The March 2020 remand found the Veteran served in Vietnam and that exposure to an herbicide agent was presumed. Although basal cell carcinoma is not one of the diseases listed in 38 § C.F.R. 3.309, which are entitled to presumptive service connection due to exposure to an herbicide agent, the Veteran is not precluded from establishing service connection on a direct basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039, 104344 (Fed. Cir. 1994). The September 2020 VA examiner's rationale relied on a diagnosis of skin cancer many years after his release from active service and no evidence of an in-service diagnosis. The examiner's rationale failed to address whether his skin cancer was etiologically related to his presumed herbicide agent exposure. In September 2020, the Veteran also underwent a VA examination for his hemorrhoids. The examiner opined his claimed hemorrhoid condition was less likely incurred in or caused by an event, injury, or disease during service. The examiner noted no diagnosis of hemorrhoids in his service treatment records. In January 1985 and January 1992, he did not complain of hemorrhoids and the digital rectal examination was normal. The March 2020 remand found while the Veteran's service treatment records did not show a hemorrhoid diagnosis, he was competent to report on factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Additionally, the March 2020 remand found his service personnel records generally supported his claimed in-service event. The September 2020 VA examiner's rationale did not address the Veteran's statements that his hemorrhoids developed from sitting on the cold armor plating of the tanks during field exercises in basic training. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner's opinion does not provide an adequate rationale regarding whether the Veteran's hemorrhoids were related to service. Where the VA undertakes to provide the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet App. 303, 311 (2007). After the above development, the Board finds an addendum opinion from the September 2020 VA examiner should be requested regarding the Veteran's service connection claims for skin cancer, hemorrhoids, and a lower back disability. The matters are REMANDED for the following action: 1. Provide the Veteran a VA Form 21-4142. Request that he identify all relevant non-VA health care providers including the name and address who have treated him. If the Veteran identified a private provider, make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Obtain and associate all other outstanding VA and non-VA treatment records with the claims file. 2. Once the above development has been completed obtain an addendum opinion from the September 2020 VA examiner regarding the Veteran's service connection claims for skin cancer, hemorrhoids, and a lower back disability. If the September 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another qualified clinician. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner is asked to opine on the following: (a.) If it is at least as likely as not that his skin cancer had its onset in service or was otherwise etiologically related to any event or circumstance of his service, to include exposure to an herbicide agent during service. (b.) If it is at least as likely as not that his hemorrhoids had its onset in service or was otherwise etiologically related to any event or circumstance of his service, to include sitting on the cold armor plating of the tanks during field exercises in basic training. (c.) If it is at least as likely as not that his lower back disability had its onset in service or was otherwise etiologically related to any event or circumstance of his service, to include completing numerous parachute jumps. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.