Citation Nr: 1319582 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-50 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for the residuals of skin cancer. 3. Entitlement to service connection for chronic obstructive pulmonary disease (hereinafter "COPD"), to include as secondary to asbestos exposure. 4. Entitlement to service connection for right knee arthritis. 5. Entitlement to service connection for disc disease of L5 to S1 (claimed as back condition, hereinafter referred to as "lumbosacral spine disorder"). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to March 1964 and from January 1965 to January 1967. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from an April 2009 rating decision from the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Hartford, Connecticut. The Veteran provided testimony at a May 2010 hearing before a Decision Review Officer (hereinafter "DRO") at the RO. A transcript of the hearing is associated with the claims file. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed Virtual VA to ensure a complete assessment of the evidence. No additional documents pertinent to the present appeal were revealed. A claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2012). In light of Brokowski, Robinson, and Clemons, and in consideration of the Veteran's recent assertion that his COPD is related to asbestos exposure, the Board has recharacterized the Veteran's COPD claim as indicated on the title page. The issues of entitlement to service connection for COPD, to include as secondary to asbestos exposure; for right knee arthritis; and for lumbosacral spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claims for service connection for the residuals of skin cancer and for bilateral pes planus have been accomplished. 2. There is clear and unmistakable evidence that bilateral pes planus pre-existed the Veteran's first period of active duty. 3. The evidence of record does not clearly and unmistakably demonstrate that there was no increase in severity of bilateral pes planus during a period of the Veteran's active service, or that such increase was due to the natural progress the disease. 4. The evidence is in relative equipoise on the question of whether the Veteran's currently demonstrated residuals of skin cancer are as likely as not to have had their onset during his active service. CONCLUSIONS OF LAW 1. The bilateral pes planus was aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). 2. Residuals of skin cancer were incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Duties to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (hereinafter "VCAA") and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Given the favorable disposition of the claims for service connection for the residuals of skin cancer and bilateral pes planus, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. Under this circumstance, there is no prejudice to the Veteran in adjudicating the claims for service connection without further discussion of VA's duties to notify and assist. Bernard v. Brown, 4 Vet. App. 384 (1993). The Merits of the Claim-Service Connection The Veteran contends that he currently has residuals of skin cancer related to significant sun exposure while serving in the desert while in the U.S. Navy, and flying remote control planes for Marines to shoot for target practice. He also asserts that his preexisting bilateral pes planus was made worse as a result of the rigors of military service, including lifting and marching, which caused trauma to his feet. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. In order to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is treated as an ordinary claim for service connection, meaning that if service connection is established there is no deduction for any pre-existing portion of the disability. Wagner, supra. In which case, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Certain chronic diseases, such as arthritis, which are listed in 38 C.F.R. § 3.309(a) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. If chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the present case, the Board finds after careful consideration that the evidence is at least in a state of relative equipoise on all material elements of the Veteran's claims for service connection for the residuals of skin cancer and for bilateral pes planus, for the following reasons. The service treatment records clearly show that on Report of Medical Examination for the purpose of enlistment in September 1960, the Veteran was observed to have bilateral pes planus, second degree, asymptomatic, not considered disqualifying. He was also observed to have "scars and marks," including on his left ankle, left wrist, left hand and top of head. A June 1961 Sick Call Treatment Record shows the Veteran was treated for planter's wart with the onset in boot camp. On Report of Medical Examination for the purpose of candidate for "Deep Freeze" in November 1961, the Veteran was diagnosed with pes planus second degree, asymptomatic, not considered disqualifying, and it was noted that he had marks and scars, including on his left ankle, left wrist, left palm and top of his head. On Report of Medical Examination for the purpose of release to inactive duty dated in March 1964, the practitioner noted the Veteran had marks and scars, including one on his left ankle, left wrist, top of head and left palm. On Report of Medical Examination in January 1965, it was noted that the Veteran had pes planus second degree, not considered disqualifying, and body marks, scars, and tattoos, including a tattoo on his left upper arm, his right upper arm, and his right lower arm. An August 1965 Sick Call Treatment Record reveals treatment for callus of the left foot for 2 years. Because the Veteran's entrance examination in this case included evidence of preexisting bilateral pes planus, the presumption of soundness under 38 U.S.C.A. § 1111 does not apply. The next step of the inquiry is to determine whether the Veteran's pre-existing disease was aggravated in service. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. VAOPGCPREC 3-2003 (July 16, 2003); 69 Fed. Reg. 25,178 (2004). Here, there is conflicting evidence on the matter of aggravation. Post-service, the Veteran has been diagnosed with and treated for recurrent basal cell carcinoma; painful feet; lipoma; itchy right forearm; right foot pain; arthritis in the feet; lesion on the scalp; rash on head; and seborrhea with possible early psoriasis, since 1996 and 1998. In June 2010, the Veteran submitted a medical opinion by "Dr. Gart," a private dermatologist who had treated him for his recurrent lesions and excisions on the arms, back, head, ears and face, determined to be skin cancer. Dr. Gart noted that the Veteran reported that he sustained severe burns on multiple occasions while in the Navy, while stationed in San Diego. Dr. Gart indicated that the Veteran's sun burns occurred prior to him turning 21. It was further noted that the Veteran began to develop cancerous lesions approximately 15 years prior, and that he underwent monitoring and treatment since that time. Dr. Gart opined that the burns the Veteran sustained during his time in the Navy were a contributing factor of the skin cancer he currently has. In June 2010, the Veteran also submitted an opinion by "Dr. Glaser," his private physician. Dr. Glaser observed that the Veteran had the "highest degree of pes planus," noting that his ankles were turned in due to his pes planus and he had arthritis in his feet as well as his ankles. He also had bunions and heel spurs which were attributed to the pes planus. Dr. Glaser noted that the Veteran had tried orthotics in the past without any improvement. The Veteran reported that he did not have that degree of pes planus prior to entering the Navy, but during the time that he was in service, he had to march, run and carry heavy objects while wearing poorly fitted boots. Dr. Glaser opined that the Veteran's activities that he performed in the Navy were a contributing factor to the worsening of his pes planus. In October 2010, the Veteran underwent a VA general examination, during which the examiner reviewed the claims file and the Veteran's service treatment records and post-service private treatment records, which showed findings of pes planus with osteoarthritis, and basal cell carcinoma. The examiner noted a history of skin cancer since June 1996, when the Veteran first had a basal cell removed from his mid-back. The Veteran also had surgery on the right ear, scalp, nose and right cheek. The examiner indicated the Veteran reported he had several burns in the service, but did not receive any treatment, and the Veteran had a family history of skin cancer, fair skin and blue eyes. The examiner also noted a history of pes planus that the Veteran reported had been a progressive problem over the previous 25 years. The Veteran denied injuring to his feet, and reported that he did not enter service with flat feet. He believed he developed flat feet 10 years after he separated from service. He reported marching with poorly fitted shoes in service contributed to his pes planus, but he did not seek treatment at that time. Instead, he sought treatment in approximately 2008, after feeling pain, and seeing a podiatrist who fitted him for orthotics. The Veteran indicated that his right foot bothered him more than his left, and an MRI scan of the right foot was positive for diffuse osteoarthritis. The Veteran's more recent symptoms included complaints of pain with any weight bearing activities, described as aching, and relieved by remaining off his feet. The Veteran indicated that he sometimes had pain at night when he was sleeping. He reported swelling in his feet, without redness or heat, for which he took Vicodan 1 to 3 times a day with relief. The Veteran denied undergoing any injections to his feet, but indicated that his activity was limited because of pain. The Veteran was ultimately diagnosed with seborrheic keratosis, which the examiner opined was likely related to the Veteran's aging and lifelong sun exposure, and less likely to his service. The examiner noted that the Veteran also had scars secondary to the removal of basal cell cancer with no functional impairment that were also likely related to the Veteran's aging and lifelong sun exposure and less likely to his service. The examiner noted the Veteran was first treated for basal cell cancer in 1996, at age 53. The examiner opined that a link for these skin disorders to service could not be made without resorting to speculation. The Veteran was also diagnosed with bilateral pes planus, bunions, hallux valgus and degenerative joint disease causing mild functional impairment as a result of subjective complaints. The examiner again opined that it would not be possible to link the Veteran's foot disorder to service using the evidence at hand without resorting to speculation. The examiner concluded that there was no indication on pre- and post- service physical that the Veteran's bilateral pes planus was aggravated by his service. There is competent evidence in support of and against the claims. It is the responsibility of the Board to weigh the evidence, both medical and lay evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). Evidence that is internally inconsistent or inconsistent with other evidence of the record lacks credibility. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed Cir. 1996). In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that a determination that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion. However, a bald statement that it would be speculative for the examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity. For example, it is not clear whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit such an opinion, either of which would render the opinion inadequate for resolving the claim. Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Court in Jones further held that the examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of the examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Id. Therefore, in consideration of the competent and credible lay statements provided by the Veteran describing his current symptomatology, and the observable changes of his pre-existing bilateral pes planus during and after service, and in relying upon the competent, highly probative opinion of Dr. Glaser, which was based on an extensive review and explanation of the Veteran's medical history, the Board finds that service connection for bilateral pes planus is warranted. Also, in consideration of the Veteran's competent and credible lay statements describing his sun exposure in service, and his repeated treatment for skin cancer and various other skin problems after service, along with the competent, highly probative opinion of Dr. Gart, which was based on an extensive review and explanation of the Veteran's medical history, the Board finds that service connection for the residuals of skin cancer is warranted. The Board finds the reports of Dr. Gart and Dr. Glaser are more probative than the October 2010 VA examination report, because these reports provide more compelling rationale to support the opinions proffered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30 (explaining that most of the value of a medical opinion lies in its reasoning). Conversely, the VA examiner couched the opinions in terms of mere speculation, and these opinions are less probative as they fail to adequately support or weigh against the claim. See Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010). In this regard, the VA examiner had attributed the Veteran's residuals of skin cancer and current seborrheic keratosis to aging and lifelong sun exposure, but failed to distinguish between in-service sun exposure and post-service sun exposure, or to explain why the Veteran's sun exposure in service could not have been the cause of his current disability, and could not provide a better opinion without resorting to speculation. However, Dr. Gart intimated that the Veteran's type of skin cancer was related to severe sun burns on multiple occasions, which occurred prior to age 21. Dr. Gart noted that the Veteran had begun to develop cancerous lesions 15 years prior, which is why Dr. Gart opined that the burns the Veteran sustained during his time in the Navy were a contributing factor of his skin cancer. Also, the VA examiner had summarily dismissed the likelihood that the Veteran's bilateral pes planus was aggravated in service, but failed to explain why. However, Dr. Glaser's opinion that the Veteran's service was a contributing factor in his pre-existing bilateral pes planus was supported by the service treatment records, which showed occasional treatment for foot problems, and the post-service private treatment records, which indicate that the Veteran currently has severe bilateral pes planus with osteoarthritis, without any improvement. Importantly, the Board may not base a decision on its own unsubstantiated medical opinion, but rather may reach a conclusion only on the basis of independent medical evidence or adequate quotation from recognized medical treatises. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011) (although the Board may permissibly draw "inference[s] based on the evidence," any inference resulting in a medical determination must be independent and cited; otherwise, it is an impermissible medical inference in violation of Colvin). Accordingly, the claim for service connection for bilateral pes planus must be granted because the Veteran has established that he has a current disability, that a pre-existing disability was aggravated during service, and the current disability is related to the pre-existing condition aggravated during service. Also, the claim for service connection for the residuals of skin cancer is granted for the reasons outlined above. While the record has been developed, there is no doubt that further medical inquiry could be undertaken with a view towards development of these claims. However, given the adequate positive medical opinions in favor of the claims, any further medical examinations would not materially assist the Board in this determination. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and service connection for the residuals of skin cancer and for bilateral pes planus will be granted. See Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral pes planus is granted. Service connection for the residuals of skin cancer is granted. REMAND The record as it stands is inadequate for the purpose of rendering a fully informed decision as to the remaining claims that have been certified for the Board's review at this time. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to the claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In this regard, the claims file reflects that additional development is necessary with respect to the Veteran's claims for service connection for COPD, for right knee arthritis and for the lumbosacral spine disorder. Specifically, the duty to assist has not been met by VA. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159(c)(2). The record clearly indicates that the Veteran is in receipt of Social Security Administration (hereinafter "SSA") disability benefits. No SSA records appear within the claims file and no attempt has been made to obtain these records. VA has a duty to obtain SSA records when they may be relevant. Voerth v. West, 13 Vet. App. 117, 121 (1999). In this case, these records may contain information regarding the nature and etiology of the Veteran's claimed disabilities. Thus, upon remand, the RO/AMC should make as many attempts as are necessary to obtain the Veteran's SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Baker v. West, 11 Vet. App. 163 (1998). Also, the Veteran has testified that he has undergone treatment at the West Haven and/or New Haven VA Medical Centers (hereinafter "VAMCs"). Complete VA treatment records from these VAMCs must be associated with the claims file. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Moreover, the Board finds that new VA examinations and medical opinions must be obtained before these claims may be adjudicated. The Veteran contends that he currently has COPD related to smoking tobacco and asbestos exposure in service. For claims based on the effects of tobacco products received by VA after June 9, 1998, a disability or death will not be considered service connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. For the purpose of this section, the term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. These provisions do not prohibit service connection if: (1) The disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. For purposes of this section, "otherwise shown" means that the disability or death can be service connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service; or (2) The disability or death resulted from a disease or injury that appeared to the required degree of disability within any applicable presumptive period under §§ 3.307, 3.309, 3.313, or 3.316; or (3) Secondary service connection is established for ischemic heart disease or other cardiovascular disease under § 3.310(b). 38 C.F.R. § 3.300. The Veteran also contends that his right knee was injured when he ran into a concrete block when coming out of his barracks, for which he was treated with surgical stitches. He contends that his low back was injured when he fell down a ladder aboard ship. He claims he was treated in sick call for this injury. The service treatment records show that in January 1962, the Veteran was treated for pain in the adductor region of the right thigh. He denied a history of trauma or strain, and reported that it began when he arose in the morning. A Sick Call Treatment Record, dated in March 1962, shows the Veteran was treated for a stiff neck. On Report of Medical Examination for the purpose of discharge in January 1967, it is noted that the Veteran had "abnormal" lungs and chest. A partially legible notation indicates findings of what appears to be "pectus excavatum," which was not considered disqualifying. Post-service, the Veteran has been diagnosed with and treated for chronic low back pain; probable osteoarthritis of the right knee; no significant abnormality of the pelvis, but osteophyte formations and marked apophyseal sclerosis at L4 to L5 with question of spondylolysis at L4 versus artifact and marked narrowing of the L5 to S1 disc space; diffuse ground-like density throughout the upper lobes, bilaterally, with the suggestion of possible very small nodules, question secondary or centrilobular nodules, indicating tobacco use and hemoptysis; no MRI evidence of cervical lymphadenopathy or soft tissue mass; mucosal sinus disease, straightening of the cervical lordosis; no lung mass or infiltrate identified; no focal abnormality noted at the left lung base; probable subpleural blebs and/or bullae of both lung apices; and mild degeneration seen at multiple cervical levels most pronounced at the C6 to C7 level. In August 2009, Dr. Glaser provided a medical opinion, noting that the Veteran was diagnosed with arthritis and degenerative joint disease in the neck, lower spine and knee. Dr. Glaser noted that the Veteran reported that his back, neck and knee problems began when he was in the Navy. He went aboard ship and was going down a flight of steps when he slipped and fell down the stairs, striking the lower back on several steps. Dr. Glaser noted that the Veteran also claimed that he struck his head when he landed, and indicated the Veteran reported the scars on his head were related to this accident. The Veteran reported a separate incident of running out of the barracks and into a large cement block, where he struck his knee on the edge of the block, which caused his knee to be torn open, and which caused him to require sutures for the injury. Dr. Glaser noted the Veteran had a scar on his right kneecap related to the injury. Dr. Glaser indicated that the Veteran reported that he had pain in his back, neck and knee since the in-service injuries, which had worsened over the years to the point where he had to apply for SSA disability insurance benefits. Dr. Glaser observed that the Veteran was unable to work due to his pain, and opined that the Veteran's disabilities are directly related to the injuries he sustained while in the Navy. In June 2010, the Veteran submitted Internet research that addressed asbestos exposure in veterans, and the health effects of such exposure. The Board notes, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting from asbestos exposure. The date of this amended material is December 13, 2005. The Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). Thus, development and adjudication of this matter should be in accordance with the appropriate criteria, including that set forth in the above guidelines. If it is determined that the Veteran was exposed to asbestos in service, a VA medical examination should be scheduled to ascertain whether he has a lung disorder related to his asbestos exposure. Such examination and review should include examination of this Veteran and review of the claims file by a physician who is a certified "B reader" (a physician certified by the National Institute for Occupational Safety and Health (hereinafter "NIOSH")). In October 2010, the Veteran underwent VA general examination. The examiner diagnosed the Veteran with COPD that was likely related to a history of smoking. The examiner indicated that a nexus could not be established without resorting to mere speculation; however, the examiner failed to explain why this was the case. The Veteran was also diagnosed with cervical and lumbar degenerative disc disease that was found to be likely related to the Veteran's age and work history, but a nexus could not be established without resorting to mere speculation. Finally, degenerative joint disease of the right knee with mild functional impairment was found to be the result of subjective complaints. The examiner opined that it would be difficult to provide a nexus opinion without resorting to mere speculation. The Board finds the opinions of the Veteran's private physicians, and the October 2010 VA examiner's opinion, the only of record addressing the nature and etiology of the Veteran's claimed lung, right knee, and spine disabilities, to be deficient for the purpose of VA rating. First, with respect to the claimed COPD, the examination report did not contain sufficient opinion regarding the likelihood of the Veteran's asbestos exposure, or evaluation of his lung disorder along those lines. The probative value of medical opinion evidence, among other factors, is based on whether a clinician was "informed of the relevant facts" and medical history in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Second, the opinions as to the existence of relationships between the Veteran's lung, right knee, and spine disabilities and his military service are cursory and conclusory. Also, the private physicians failed to adequately explain the rationale behind their opinions. Without such reasoning, the Board is unable to assign more than minimal probative weight to the examiner's and physicians' conclusions; thus, they are insufficient to decide the matter. See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, neither the private physicians' opinions, nor the October 2010 VA examination report are adequate to decide the case. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Hence, the Board finds additional VA examinations and medical opinions are required for an adequate determination of the etiology of the Veteran's claimed lung, right knee, and spine disabilities. See 38 U.S.C.A. § 1110, 1131, 1310 (West 2002); 38 C.F.R. § 3.303, 3.304 (2012). Accordingly, the Board finds that new examinations and opinions are in order. McLendon v. Nicholson, 20 Vet. App. 79 (2006). This review must be conducted with a review of the claims folder including Virtual VA. As noted, he Court has held that the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must obtain the Veteran's complete SSA disability file, including any pertinent claim for benefits, the SSA decision, any List of Exhibits associated with the decision, and copies of all of the medical records upon which any decision concerning the Veteran's entitlement to benefits was based. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. The RO/AMC must request the Veteran to identify all records of VA and non-VA health care providers who have treated his right knee, lumbosacral spine and COPD. The RO/AMC should take appropriate steps to obtain copies of any outstanding treatment records, to include any treatment records from the West Haven and/or New Haven VAMCs. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO/AMC must then conduct all development necessary to adjudicate the Veteran's claim of entitlement to service connection for COPD, claimed as secondary to asbestos exposure. Development should include asking the service department, the National Personnel Records Center, or any other appropriate organization having access to historical information regarding in-service asbestos exposure, to provide any relevant evidence or information as to whether the Veteran may have been exposed to asbestos while in service. Any records obtained should be associated with the claims file. If no such records are available, this should be indicated in the claims file. All procedures and protocols identified in the MR21-1 MR should be followed. 4. Next, the RO/AMC must arrange for a VA examination with an appropriate clinician to determine the nature and etiology of any diagnosed lung pathology, to include COPD. All indicated studies and tests are to be performed. The examination report should reflect review of pertinent material in the claims file, to include the Veteran's allegations of asbestos exposure. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in Virtual VA. The examiner is asked to confirm whether paper and/or electronic records were available for review. After reviewing the claims files, the examiner should identify all lung pathology noted in the record, to include COPD, and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed lung pathology had its onset during service, or is otherwise causally related to any event or circumstance of his active service. The examiner should describe and explain, in detail, the relationship, if any, between any diagnosed lung pathology and any diagnosed lung pathology noted in the record. In providing answers to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and may result in a return of the claim to the examiner. 5.The RO/AMC must arrange for a VA examination with an appropriate clinician to determine the nature and etiology of any right knee pathology diagnosed. All indicated studies and tests are to be performed. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in Virtual VA. The examiner is asked to confirm whether paper and/or electronic records were available for review. After reviewing the claims files, the examiner should identify all right knee pathology noted in the record, and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed right knee pathology had its onset during service, or is otherwise causally related to any event or circumstance of his active service. The examiner should describe and explain, in detail, the relationship, if any, between any diagnosed right knee pathology and any diagnosed right knee pathology noted in the record. In providing answers to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and may result in a return of the claim to the examiner. 6. The RO/AMC must arrange for a VA examination with an appropriate clinician to determine the nature and etiology of any lumbosacral spine pathology diagnosed. All indicated studies and tests are to be performed. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in Virtual VA. The examiner is asked to confirm whether paper and/or electronic records were available for review. After reviewing the claims files, the examiner should identify all low back pathology noted in the record, and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed lumbosacral spine pathology had its onset during service, or is otherwise causally related to any event or circumstance of his active service. The examiner should describe and explain, in detail, the relationship, if any, between any diagnosed spine pathology and any spine pathology noted in the service record. In providing answers to the above question, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In making all determinations, the examiner is asked to carefully consider the Veteran's own assertions and any lay assertions of record. The examiner is advised that the Veteran is competent to report his symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and may result in a return of the claim to the examiner. 7. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the claims for service connection. If the benefit sought is not granted, the RO/AMC must issue a supplemental statement of the case and allow the Veteran and his representative an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs