Citation Nr: 21032720 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-32 556 DATE: May 27, 2021 REMANDED Entitlement to service connection for skin cancer, to include as due to in-service Agent Orange and/or sun exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1966 to October 1968 with verified service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (the Board) on appeal from an October 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied service connection for skin cancer (squamous cell carcinoma). The Veteran's Notice of Disagreement (NOD) was received in October 2015. The Statement of the Case was issued in January 2016, and the Veteran's VA Form 9, substantive appeal to the Board, was accepted as timey in July 2016. In July 2019, the Veteran and his representative appeared before the undersigned Veterans' Law Judge (VLJ) for a Board hearing. The transcript is of record. In October 2019, the claim was remanded for further development and adjudication. A March 2020 Board decision denied the claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Court (the Court). In a January 2021 Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's March 2020 decision, and remanded the claim for further development in compliance with the directives specified in the JMR. Entitlement to service connection for skin cancer, to include due to exposure to Agent Orange is remanded. The Veteran contends that his skin cancer is due to his in-service exposure to Agent Orange and/or excessive sun exposure. In the January 2021 JMR, the parties agreed that the Board did not satisfy its duty to assist to obtain outstanding treatment records, noting that VA must make reasonable efforts to obtain relevant treatment records from private medical care providers. In this regard, the file contains an August 2017 letter from Dr. V.P. of the Tara Dermatology Center indicating that the Veteran had been seen in his office for a number of years. The parties further indicate, "However, VA did not make efforts to obtain records from Tara Dermatology, rather only seeking and obtaining treatment records from Dermatology & Skin Center." The JMR found that although VA was aware of the Tara Dermatology records, it neither requested those records nor notified the Veteran that it was unable to obtain them, thereby failing to ensure that VA's duty to assist was satisfied. Notably, in the Board's October 2019 remand, the first remand directive instructs the RO to: Request from the Veteran the names and addresses of all health care providers who have diagnosed and provided treatment for his skin cancer. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate any outstanding records with the claims file. In November 2019, the RO sent the Veteran correspondence requesting him to provide names and addresses of all health care providers who have diagnosed and treated his skin cancer. The Veteran provided the necessary information and authorization for Dermatology and Skin Surgery Center. See VA Form 21-4142a, General Release for Medical Provider Information to VA, received on December 3, 2019. Those records were subsequently obtained; however, the Veteran did not list any other providers on the authorization form. Accordingly, the Board was not authorized by the Veteran to attempt to obtain records from the Tara Dermatology Center. That notwithstanding, the matter is remanded for other necessary development, and as such, additional attempts to obtain the Tara Dermatology records will be requested. Also notable is the Veteran's hearing testimony. At the Board hearing, the August 2017 opinion of Dr. Peng was discussed, and it was explained to the Veteran that the opinion finding that the Veteran's skin cancer issue "certainly could have been exacerbated during his time in service [in Vietnam]" did not rise to the "as likely as not" standard of proof. The Veteran asked at the hearing if it would be helpful to ask Dr. Peng to provide more clarity, and the undersigned indicated that an opinion with a rationale would be helpful. To date, the Veteran has not provided a more specific opinion with an adequate rationale from Dr. Peng. That notwithstanding, the parties also agreed that the January 2020 VA opinion contained an inconsistent statement requiring clarification. More specifically, the physician stated: In the majority of human dioxin exposure studies, an increased incidence of skin cancers has not been found. The medical literature does not show evidence of an etiological link between herbicide (agent orange) exposure and development of skin cancers. Based on the wording of this sentence, it is not clear whether there are a minority of human dioxin exposure studies showing an increased incidence of skin cancers; or, whether there are none at all. Accordingly, clarification is necessary. In addition, the Veteran's private dermatologist, C.G., who diagnosed actinic Keratosis in September 2019, with a history of squamous cell carcinoma skin cancer, indicated that actinic damage is a chronic dermatitis due to solar radiation that is accumulative sun damage. Dr. C.G. also indicated that the Veteran's tour in Vietnam and history of Agent Orange exposure was "very likely contributory to both of these skin conditions." Dr. D.G. further noted that with more extensive sun exposure, there is the risk of developing skin cancer. Finally, Dr. C.G. referred to a June 2015 biopsy showing squamous cell carcinoma in situ, and, opined that it was directly and likely associated with Agent Orange exposure. Dr. C.G. also stated, "As you are aware Agent Orange exposure is significantly associated with the risk of developing squamous cell carcinoma." However, Dr. C.G. provided no medical rationale or scientific/treatise evidence to support this finding of a "significant association" and did not specifically state that squamous cell skin cancer fell into that category. Regarding the Veteran's sun exposure, the Veteran's DD Form 214 indicates that he only had 6 months and 14 days of foreign service, and the Veteran's service personnel records confirm that the Veteran served in the Republic of Vietnam from April 1986 to October 1968. Accordingly, even if we presume that the entire 6 months and 14 days of Vietnam service was spent in the bright sun, that still leaves over several decades of unknown sun exposure and many years between the Vietnam sun exposure and the development of skin cancer. Thus, additional information from the Veteran is necessary on remand. The matter is REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records related to the Veteran's skin cancer and associate them with the claims file. In particular, the RO is instructed to request from the Veteran authorization to obtain complete records from Dr. V.P. and Tara Dermatology Center; and, any other provider who treated the Veteran for skin cancer. If any such records are unavailable, it must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from the January 2020 VA examiner, if possible, to clarify whether there are a minority of (any) human dioxin exposure studies showing an increased incidence of skin cancer; or, whether there are none. If that examiner is unavailable to provide an addendum opinion, ask the examining clinician, another dermatologist, if possible, as requested below, to provide clarity. 3. Following completion of the above, schedule the Veteran for a VA examination to determine the current nature, and likely etiology of the Veteran's skin cancer. The examiner should review the entire claims file, including a copy of this remand and the medical opinions discussed above. The VA examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's skin cancer is related to an in-service injury, event, or disease, including exposure to Agent Orange and/or excessive sun exposure during service in Vietnam. In this regard, the examiner is asked to review the entire claims file, including a copy of this remand, and comment on the December 2019 opinion of Dr. C.G., and in particular, the assertion that Agent Orange exposure is significantly associated with the risk of developing Squamous Cell Carcinoma. In addition, the examiner should obtain from the Veteran a history of pre- and post-service sun exposure, the Veteran's particular risk factors for developing skin cancer; and, any other pertinent medical history deemed necessary before forming the opinion. A complete rationale based on sound medical principles is necessary for all opinions. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.