Citation Nr: 21040150 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-00 518 DATE: July 2, 2021 REMANDED Entitlement to an initial compensable rating for asbestosis with pleural plaques is remanded. Entitlement to service connection for melanoma, to include as due to herbicide exposure, is remanded. Entitlement to service connection for respiratory disorder (other than asbestosis, mesothelioma, and sinus condition), to include as due to herbicide exposure and/or secondary to service-connected asbestosis with pleural plaques, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1970 to July 1974. In January 2020, the Board reopened the previously denied claim of service connection for melanoma and remanded the issues of service connection for melanoma and respiratory disorder (other than asbestosis, mesothelioma, and sinus condition), as well as, for an initial compensable rating for asbestos with pleural plaques for additional evidentiary development. In light of the February 2020 VA Form 21-4138 by the Veteran's agent, if the Veteran wishes to claim entitlement to service connection for actinic keratosis, he is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2020). 1. Entitlement to an initial compensable rating for asbestosis with pleural plaques Pursuant to the January 2020 Board remand directives, the Veteran underwent a VA examination for respiratory conditions in February 2020. The Veteran informed the VA examiner that he saw his private pulmonologist a few months ago and they are doing more tests. In the February 2020 VA medical opinion, the VA examiner further noted the Veteran's report that he has resumed seeing his private pulmonologist due to increased shortness of breath. This assertion by the Veteran indicates the existence of outstanding private treatment records that may be potentially relevant to this claim on appeal. Additionally, review of VA treatment records dated since the February 2020 VA examination reflects the Veteran is "doing pulmonary rehab at [H]illcrest," as noted in February 2020 and January 2021. As a result, additional development is needed to properly adjudicate this claim on appeal. See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159 (2020); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for melanoma, to include as due to herbicide exposure Pursuant to the January 2020 Board remand directives, the Veteran underwent VA examinations for scars/disfigurement and skin diseases in February 2020 and was provided a VA medical opinion on a direct basis in February 2020. Following the in-person examinations, the VA examiner concluded, in part, that "it is more likely than not that [the Veteran's] melanoma is related to his long history of sun exposure, age, light hair and light eyes." The rationale provided, in part, that there is no medical literature that shows a link from warts or herbicide exposure to melanoma and consideration of the Veteran's admission to civilian outdoor construction business where he constructed building and pools and long history of fishing for hobby. On the contrary, in a February 2020 VA Form 21-4138, the Veteran's agent objects to the February 2020 VA examination reports by asserting the VA examiner's rationale failed to take into consideration the Veteran's service in the Navy aboard the USS Jason and his sun exposure during that time. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, an additional medical opinion is needed regarding the etiology of the Veteran's melanoma on a direct basis to reflect consideration of his in-service sun exposure. See 38 C.F.R. § 3.303. 3. Entitlement to service connection for respiratory disorder (other than asbestosis, mesothelioma, and sinus condition), to include as due to herbicide exposure and/or secondary to service-connected asbestosis with pleural plaques Pursuant to the January 2020 Board remand directives, the Veteran underwent a VA examination for respiratory conditions and was provided VA medical opinions on direct and secondary bases in February 2020 by M. B. In a February 2020 VA Form 21-4138, the Veteran's agent objects to the February 2020 VA examination reports by asserting the VA examiner's rationale failed to take into consideration the following evidence: the Veteran's conceded in-service herbicide exposure; the Veteran's statement that he smoked for approximately 4 to 5 years; the Veteran's military occupational specialty (MOS) of boiler technician/fireman which he testified required him to work in the boiler room which caused him to breathe in jet fuel, oil, rust, and chemicals include TCE; the Army Chemical Corps Vietnam-Era Veterans Health study which found that "a significant association was found between herbicide exposure and self-reported physician diagnosed chronic obstructive pulmonary disease (COPD)"; and research published by the Journal of Occupational Medicine and Toxicology which found that asbestos exposure is "related to restrictive and obstructive lung function impaired." Subsequently, the Veteran was provided VA medical opinions on direct and secondary bases in September 2020 by B. R. With regards to the opinions provided on a direct basis, while the VA physician acknowledged the Veteran's in-service herbicide exposure and "years of tobacco abuse," a notation that the "Veteran's history is positive for decades of tobacco abuse" was reiterated and there was no consideration of the Veteran's in-service exposures as a result of his MOS or medical literature including the Army Chemical Corps Vietnam-Era Veterans Health study and research published by the Journal of Occupational Medicine and Toxicology. Again, when VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr, 21 Vet. App. at 312. As such, an additional medical opinion is needed regarding the etiology of the Veteran's respiratory disorder (other than asbestosis, mesothelioma, and sinus condition) on a direct basis to reflect consideration of his reported 4 to 5 years of tobacco use, in-service exposures due to his MOS of boiler technician/fireman, and medical literature raised by the Veteran's agent in the February 2020 VA Form 21-4138. See 38 C.F.R. § 3.303. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or pulmonology providers relevant to his service-connected asbestosis with pleural plaques and provide him with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding records so authorized for release from any facility and/or pulmonology provider identified by the Veteran, to include Hillcrest. If these records cannot be obtained, the agency of original jurisdiction (AOJ) must document the attempts that were made to locate them and the Veteran must be notified. 2. Then, return the Veteran's claims file to the examiner who conducted the February 2020 VA examinations for scars/disfigurement and skin diseases and provided the February 2020 VA medical opinion for melanoma so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's melanoma (even if since resolved) is related to an incident of service, to include consideration of his service in the Navy aboard the USS Jason and his sun exposure during that time. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Return the Veteran's claims file to the examiner who provided the September 2020 VA medical opinions for respiratory disorder (other than asbestosis, mesothelioma, and sinus condition) by B. R. so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's (other than asbestosis, mesothelioma, and sinus condition) is related to an incident of service, to include consideration of his reported 4 to 5 years of tobacco use, in-service exposures due to his MOS of boiler technician/fireman (breathed in jet fuel, oil, rust, and chemicals include TCE), and medical literature raised by the Veteran's agent in the February 2020 VA Form 21-4138 (the Army Chemical Corps Vietnam-Era Veterans Health study which found that "a significant association was found between herbicide exposure and self-reported physician diagnosed COPD" and research published by the Journal of Occupational Medicine and Toxicology which found that asbestos exposure is "related to restrictive and obstructive lung function impaired."). The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.