Citation Nr: 22017219 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-33 103 DATE: March 24, 2022 REMANDED The issue of entitlement to service connection for status post excision of basal and squamous cell carcinoma of the skin, to include as due to in service exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to November 1971. This appeal to the Board of Veteran's Appeals (Board) arose from a June 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Initially, the Veteran requested a hearing before the Board but later cancelled this request. See December 2021 Correspondence. After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of this appeal. The Veteran contends that he developed a skin disorder as a result of exposure to herbicide agents during his service. In this regard, the Board notes that he has verified service in Vietnam during the applicable time period, and, thus, his in-service exposure to herbicide agents is conceded. A May 2016 VA examiner opined that it was less likely than not that the Veteran's basal cell and squamous cell carcinoma are related to his service. The examiner explained that the Veteran had basal and squamous cell carcinoma of the skin, excised in September 2015 at VAMC and that these conditions resolved with no chronic residual disability. The examiner continued that, per review of medical literature, these disorders are not caused by exposure to Agent Orange and are not listed as presumptive conditions from exposure to Agent Orange. The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Also, "when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency." Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013). Here, the Veteran underwent his excision in September 2015 and filed his claim in March 2016. The Board determines that a current disability existed at the time his claim was filed. More importantly, subsequent VA treatment records show that the Veteran has had recurrences of his skin conditions. See August 2018 VA Medical Treatment Records (CAPRI). Accordingly, the Board finds the examiner's opinion to be conclusory and thus insufficient to render a clear and informed determination. The examiner stated, based on medical literature, that the Veteran's skin condition was not caused by Agent Orange without providing citations or explanation into that conclusion. See Horn v Shinseki, 25 Vet. App. 231 (2012) ("an unexplained conclusory opinion is entitled to no weight in a service connection context). Further, the basis that the Veteran's skin conditions are not among the list of diseases warranting presumptive service connection for herbicide agent exposure is not adequate as a supporting rationale. A remand is, thus, required to obtain another opinion that thoroughly explains the conclusions reached. Therefore, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran's claims folder. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. He should be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Once all available, relevant medical records have been received, and associated with the claims file, schedule the Veteran for an appropriate examination to determine the nature and etiology of his skin disorder(s). The examiner should have the opportunity to review the Veteran's claims file in conjunction with the examination. Then, the VA examiner should offer opine: Is it at least as likely as not (50 percent or greater probability) that the Veteran's skin conditions (basal cell and squamous cell carcinoma) was incurred in, caused by, or etiologically related to his service, specifically exposure to herbicide agents? The examiner is asked to consider and discuss the likelihood that the Veteran's skin conditions are related to his exposure to herbicide agents, given the particulars of his medical history, family history, and the absence or presence of other risk factors, etc. In this regard, the Board points out that there is no presumption of service connection for basal cell and squamous cell carcinoma due to exposure to herbicide agents. The examiner cannot base the opinion solely on that fact. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the appeal. If the benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. he is (CONTINUED ON NEXT PAGE) also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Middleton, Syesa T. 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.