Citation Nr: 18160692
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 15-02 680
DATE:	December 28, 2018
REMANDED
Entitlement to service connection for a skin disability, claimed as skin cancer and to include as due to herbicide agent exposure, is remanded.
REASONS FOR REMAND
The Veteran served honorably in the U.S. Army from May 1960 to September 1970, including service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (AOJ). The Veteran testified before the undersigned at a hearing held in August 2017; a transcript of that hearing is of record. The Board remanded this case in December 2017 for further development, including an addendum opinion as to whether any of the Veteran’s current skin conditions are related to his military service, including exposure to herbicide agents. 
Entitlement to service connection for a skin disability, claimed as skin cancer and to include as due to herbicide agent exposure, is remanded.
Unfortunately, the Veteran’s service connection claims for a skin disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration.
The Veteran contends that his current skin disability, to include actinic keratosis and skin cancer, was caused by exposure to herbicide agents during his military service in Vietnam.
The Veteran underwent a VA examination in November 2010 in which the examiner opined that the Veteran’s skin disability was not related to his military service. However, as noted in the Board’s December 2017 Remand, the November 2010 VA opinion was issued prior to the Veteran’s current diagnoses of squamous cell carcinoma of the left earlobe and basal cell carcinoma of the right mandible; therefore, a remand to consider the full extent of the Veteran’s current skin disability was found to be necessary and was so ordered. The Board’s December 2017 Remand specifically directed the AOJ to obtain an addendum opinion as to whether any of the Veteran’s current skin conditions are related to his military service in Vietnam and, presuming exposure to herbicide agents during such service, whether it is at least as likely as not that his current skin conditions are related to such in-service herbicide agent exposure. 
The Veteran underwent a subsequent VA examination in September 2018 which, in finding it to be less likely than not that the Veteran’s actinic keratosis was caused by his exposure to herbicide agents during service, relied upon the following grounds: (1) the fact that the Veteran is not entitled to a presumption of causation on the basis of herbicide agent exposure under 38 C.F.R. § 3.303(e) due to the nature of his diagnoses; (2) the fact that the Veteran’s service treatment records are silent for diagnoses of his current skin conditions; (3) a conclusory statement that the Veteran’s in-service diagnosis of a skin fungus did not cause the Veteran’s current diagnoses of actinic keratosis or skin cancer; and (4) a conclusory statement that, according to a “widely-utilized, literature-based medical reference source,” entitled “Up-To-Date,” “too much sun exposure has a causal effect to [sic] the development of actinic keratosis and skin cancer.” The September 2018 VA opinion did not address the Veteran’s current diagnoses of skin cancers, including basal cell carcinoma or squamous cell carcinoma, as specifically instructed by the Board’s December 2017 Remand.
A remand by the Board confers on the claimant a legal right to substantial compliance with the remand directives; thus, where substantial compliance has not been achieved, an additional remand is necessary in order to ensure that the Veteran is afforded every possible consideration. See Dyment v. West, 13 Vet. App. 141, 147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).
As the September 2018 VA did not provide a rationale explaining why none of the Veteran’s current skin conditions were causally related to his 1964 skin fungus, or discuss whether the conditions could directly be related to exposure to herbicides, another VA examination is necessary to determine whether the Veteran’s current skin disability is related to his active military service and thus entitled to service connection on any basis. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). When the Board’s remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives. See Dyment, 13 Vet. App. at 147; Stegall, 11 Vet. App. at 271. Furthermore, in the December 2018 Written Brief, the Veteran’s representative submitted several medical treatises concerning exposure. On remand, the examiner should review and comment on these studies.
Accordingly, the matter is REMANDED for the following action:
1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record.
2. After obtaining all necessary records, forward the claims folder to a suitable physician with expertise in dermatological conditions such as actinic keratosis, basal cell carcinoma, and squamous cell carcinoma, to determine the nature and etiology of all of the Veteran’s current skin conditions. The Veteran need not be scheduled for another physical examination unless such examination is considered necessary by the examiner. The entire claims folder should be made available and reviewed by the examiner, and any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all findings should be reported in detail. The examiner must review the Veteran’s claims file and explain the complete rationale for all opinions expressed and conclusions reached. 
The Veteran was exposed to herbicide agents in Vietnam. For each diagnosed skin condition present during the pendency of the Veteran’s appeal, to include actinic keratosis, basal cell carcinoma, and squamous cell carcinoma, the examiner should state whether it as least as likely as not (50 percent probability or greater) that the condition either arose during the Veteran’s active military service or was otherwise related to his service, to include whether it was caused or aggravated by in-service herbicide agent exposure and why it is so. 
The examiner must also discuss the three medical studies cited by the Veteran’s December 2018 Appellate Brief, and explain the relationship of each study listed therein to each of the Veteran’s skin conditions.
(Continued on the next page)
 
A rationale is required for any etiological opinion.
 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Hannah Marsdale, Associate Counsel

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