Citation Nr: 22017190 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-17 044 DATE: March 24, 2022 REMANDED Entitlement to service connection for residuals of basal cell carcinoma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1970 to January 1972, to include service in Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in June 2020. A transcript of the hearing is of record. The matter was previously remanded by the Board in May 2021 for additional development. The Board finds that there has been substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, for reasons stated herein, another remand is required. 1. Entitlement to service connection for residuals of basal cell carcinoma is remanded. The Veteran asserts he is entitled to service connection for residuals of basal cell carcinoma. Pursuant to the previous May 2021 Board remand, the Veteran underwent a new VA examination in September 2021. The examiner opined that the Veteran's basal cell carcinoma was less likely than not related to his military service, to include exposure to herbicide agents. The examiner explained that there were no objective medical records documenting a diagnosis or treatment of basal cell carcinoma until 2015. The examiner stated that the long time period of silent objective medical records makes a nexus less likely. The examiner also noted that current medical literature has not established a connection between herbicides and basal cell carcinoma. The Board finds this medical opinion to be insufficient. First, the September 2021 VA medical opinion relies on a lack of medical evidence. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The United States Court of Appeals for Veterans' Claims (the Court) has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Second, the September 2021 VA examiner stated that current medical literature does not support a connection between herbicides and basal cell carcinoma. However, the Veteran, through his representative, submitted medical resources suggesting a connection between basal cell carcinoma and military service, to include exposure to herbicides and sun exposure. Accordingly, the Board finds that a remand is warranted to obtain a new VA examination and opinion; and to give the VA examiner an opportunity to address the medical resources provided by the Veteran. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a dermatologist for his basal cell carcinoma. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's basal cell carcinoma at least as likely as not related to service, including sun exposure and exposure to herbicides? The examiner is advised that a negative opinion cannot be based solely on the fact that basal cell carcinoma is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner is also asked to address the medical resources provided by the Veteran through his representative in his January 2022 Appellate Brief. (Continued on next page) Provide a rationale to support the opinion(s). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.