Citation Nr: 0006257 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 95-33 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a skin disability, to include as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from November 1953 to October 1957, and from November 1960 to May 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which among other things, denied the veteran's claim of entitlement to service connection for skin disability, to include as secondary to in-service exposure to ionizing radiation. The veteran timely appealed this determination to the Board. When this matter was previously before the Board in August 1997, the Board observed that in his September 1995 Substantive Appeal (on VA Form 9, Appeal to the Board), the veteran had requested a hearing before a Member of the Board at the local VA office. In addition, because he had failed to respond to the Board's prior inquiry into whether he still wished to be afforded such a hearing, the Board remanded this matter to clarify the veteran's intentions. Thereafter, in a signed statement, which was received at the RO in November 1998, the veteran indicated that he no longer wished to be afforded a Board hearing; he also stated that he did not want to testify at a hearing before RO personnel. The veteran's request for a Board hearing has thus been withdrawn. See 38 C.F.R. § 20.704(e) (1999). However, as the denial of the veteran's claim for this benefit has been continued, the case has been returned to the Board for further appellate consideration. In addition, in written argument dated and filed with the RO in August 1999, the veteran's representative indicated that the veteran was "in disagreement" with a January 1964 rating decision, in which the RO denied service connection for the residuals of back and left knee injuries; and that the veteran also was "in disagreement" with the September 1994 rating decision, in which the RO also denied service connection for a neck condition, as well as his application to reopen a claim for service connection for a back condition. As this statement was filed well outside of the time period for filing a Notice of Disagreement with the actions identified, the Board cannot remand these matters for issuance of a Statement of the Case, but, rather, refers them to the RO for any and all appropriate action. See 38 U.S.C.A. § 7105 (West 19991); 38 C.F.R. § 20.302 (1999); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v Gober, 10 Vet. App. 433, 436 (1997). FINDINGS OF FACT 1. In various statements, the veteran asserts that he had sun exposure during his active service in the Air Force. 2. The record contains competent medical opinion suggesting a relationship between the veteran's current actinic keratosis and prior sun exposure. 3. The veteran's claim is at least plausible. CONCLUSION OF LAW The veteran has submitted a well-grounded claim of entitlement to service connection for actinic keratosis. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the veteran's service, or by evidence that a presumption period applied. See 38 C.F.R. §§ 3.303, 3.307, 3.309. However, the preliminary question to be answered in this case is whether the veteran has in fact presented evidence of well-grounded claim. A well-grounded claim is not necessarily a claim that will ultimately be deemed allowable. It is a plausible claim, properly supported with evidence. See 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464 (1997); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In order for a claim for service connection to be well- grounded, there must be competent evidence (lay or medical, as appropriate) of: (1) a current disability; (2) an in- service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Epps, 126 F.3d at 1468; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under he case law of the Unites States Court of Appeals for Veterans Claims (formerly, the United States Court of Veterans Appeal), lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). The veteran reports that, due to significant sun exposure during his active service in the Air Force, he suffers from chronic skin disability. The medical evidence demonstrates that he currently has been diagnosed as having squamous cell carcinoma and actinic keratosis, with residual scar formation as a result of the latter disability. While the veteran (a layperson without the appropriate training and expertise), is not competent to render an opinion as to the etiology of either of his skin disabilities, see Jones v. Brown, 7 Vet. App. 134, 137 (1994) and Espiritu v. Derwinski, 2 Vet. App. 292, 294-5 (1992), the record does include a medical statement on this point. In the July 1994 VA dermatological examination report, the physician noted the veteran's complaint of solar exposure and diagnosed him as having solar damage to the skin and residual scarring from previous surgeries and attributed the disability to sun exposure; the medical records dated prior to that examination report show significant treatment for his actinic keratosis. The Board finds that this evidence suggests a relationship between the currently diagnosed actinic keratosis and the veteran's active military service. Hence, a review of the record shows competent evidence of a current disability (numerous diagnoses of actinic keratosis and squamous cell carcinoma); an in-service injury (the veteran's assertion that he was exposed to sun exposure during service is presumed truthful for purpose of determining whether the claim is well grounded, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995) and King v. Brown, 5 Vet. App. 19, 21 (1993)); and a nexus between the sun exposure and the current condition (the opinion offered by the July 1994 VA examiner). Hence, the criteria for establishing the claim as plausible have been met. See Epps; Caluza. Accordingly, the Board finds that the veteran has submitted a well-grounded claim of entitlement to service connection for skin disability. ORDER As evidence of a well-grounded claim for service connection for skin disability has been presented, the appeal is granted to this extent. REMAND As the veteran has submitted a well-grounded claim of entitlement to service connection, the RO must now consider the claim on the merits. Prior to adjudication of the claim on the merits, however, additional development is warranted. In this regard, the Board notes that VA's duty to assist requires that the veteran be afforded a VA examination with respect to this disability, which should take into account the records of the veteran's prior medical history, and that includes an opinion as to the etiology of this disability before a decision concerning his appeal can be made. See Pond v. West, 12 Vet. App. 341, 346 (1999); Moore v. Derwinski, 1 Vet. App. 401, 405 (1991). In this regard, the Board observes that, although the July 1994 VA examiner diagnosed the veteran as having skin disability that was due to solar exposure, it does not appear that he had the benefit of reviewing the veteran's claims folder prior to the preparation of his report. Further, a review of the record shows that the examiner's opinion was apparently not considered by the RO, because that basis of his claim of entitlement to service connection has not been adjudicated. The Board concludes that such adjudication should be done, in the first instance, by the RO to avoid any prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Furthermore, if the claim is again denied, the RO must provide notice to the veteran of and afford him an opportunity to respond with argument/evidence. In addition, the record shows that, subsequent to the July 1994 VA dermatological examination, the veteran submitted a medical report, dated in April 1995, which was drafted by his private treating dermatologist, Dr. Steven R. Quimby. In the report, Dr. Quimby indicated that he had been treating the veteran for skin problems since February 1994. In addition, his dermatologist stated that, after performing a biopsy of the veteran's left wrist and left ear, he diagnosed him as having squamous cell carcinoma and actinic keratosis. Although at last report the veteran was receiving regular treatment for his skin problems from Dr. Quimby, records of that treatment have not been associated with the claims folder. In addition, recent treatment records from Drs. Chester C. Danehower and Larry Patton have also not been made part of the record. As such, prior to having the veteran undergo a dermatological examination, the RO should obtain and associate with the claims folder any pertinent outstanding medical records, including those from physicians noted above. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). The veteran has also claimed entitlement to service connection for a skin disability on the alternative basis that the disability is etiologically related to his claimed exposure to ionizing radiation during service. In support, he submitted lay statements drafted by three of his former service colleagues, each dated in May 1995. In these statements, the affirmants essentially reported that, during Operation TEAPOT, while serving at Kirtland Air Force Base (AFB), the veteran was aboard a military aircraft during cloud-tracking missions and was thus exposed to ionizing radiation. In this regard, the affirmants explained that, while in service, the veteran was a propeller mechanic, and one of the aircraft was experiencing maintenance problems. Thereafter, in August 1995, the RO wrote to the Defense Nuclear Agency (DNA) (now known as the Defense Special Weapons Agency) (DSWA)), a component of the Department of Defense, to verify the veteran's participation in a radiation risk activity during his period of active duty. In its June 1996 response, DNA acknowledged the three lay statements and confirmed that aircraft from Kirtland AFB conduct cloud- tracking missions during Operation TEAPOT. DNA reported, however, that its review of the available Air Force records did not establish that the veteran was airborne during that period. Based on the opinion provided by DNA, the RO confirmed and continued the denial of this claim. In written argument dated in August 1999, however, the veteran's representative, citing the May 1995 lay statements and 38 C.F.R. § 3.311(a)(4)(i), asserted that the veteran's exposure to ionizing radiation during service should be conceded. In this regard, the Board observes that that 38 C.F.R. § 3.311(a)(4)(i) provides that, if military records do not establish the presence or absence from a site at which exposure to radiation is claimed to have occurred, the veteran's presence at that site must be conceded. The record does not reflect the RO's consideration of 38 C.F.R. § 3.311(a)(4)(i). Therefore, unless the record presents a basis for a grant of service connection for all skin disability based on alleged sun exposure, on remand, the RO should consider this section, conducting any further development deemed warranted, including requesting a radiation dose assessment from DSWA. This is especially important because although skin cancer is not among those subject to presumptive service connection on a radiation basis under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), it is listed as a potentially "radiogenic" disease under 38 C.F.R. § 3.311(b)(2). In light of the foregoing, the case is hereby REMANDED to the RO for the following actions: 1. The RO should obtain and associate with the claims file all outstanding records of treatment relating to the veteran. This should specifically include any outstanding records from Dr. Steven R. Quimby, dated since April 1994; from Dr. Chester C. Danehower, dated since September 1992; from Dr. Larry Patton, dated since April 1993; as well as all other records from any facility or source identified by the veteran. The aid of the veteran and his representative in securing such records, to include providing necessary authorizations, should be enlisted, as needed. However, if any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. After associating with the claims file all additional available records, the RO should arrange for the veteran to undergo a VA dermatological. It is imperative that the physician who is designated to examine the veteran reviews the evidence in his claims folder, including a complete copy of this REMAND. All necessary tests and clinical studies should be accomplished, and all clinical findings must be reported in detail. The examiner is requested to review the service medical records and all pertinent post-service medical records and offer an opinion as to whether it is at least as likely as not that any skin disability found to be present, to include skin cancer and actinic keratosis, is related to the veteran's claimed sun exposure during active military service. If the examiner is unable to provide the requested information with any degree of medical certainty, he or she should clearly so state. Otherwise, the physician must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a typewritten report. 3. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Unless the record presents a basis for a grant of service connection for all skin disability due to sun exposure, the RO should specifically consider the applicability of 38 C.F.R. § 3.311(a)(4)(i), and, depending on its resolution of the issue, conduct all additional development indicated by 38 C.F.R. § 3.311. 5. After completion of the foregoing, the RO should readjudicate the veteran's claim of entitlement to service connection for skin disability, to include as secondary to exposure to ionizing radiation during service, on the basis of all pertinent evidence of record, and all applicable laws, regulations and case law specifically to include that which has been cited to in the body of this remand. The RO must provide adequate reasons and bases for its determinations, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in the REMAND. 6. If the benefits sought by the veteran continue to be denied, he and his representative must be furnished a Supplemental Statement of the Case and given an opportunity to submit written or other argument in response before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to accomplish additional development and adjudication and to ensure that all due process requirements are met; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The parties need take no action until otherwise notified, but they may furnish additional evidence within the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the RO to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals