Citation Nr: 1642236 Decision Date: 11/02/16 Archive Date: 11/18/16 DOCKET NO. 09-38 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to in-service radiation and asbestos exposure. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The issue of entitlement to service connection for macular degeneration has been raised by the record in a March 15, 2016, statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). REMAND The Board finds that additional development is required for the claims before the Board, to include service connection for CLL and a left knee disability. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. The Board finds that further development is required for VA to fulfill its duty to assist the Veteran. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). With regard to the claim for CLL, the Board finds that the evidence of record to be incomplete, to include the June 2016 independent medical evaluation (IME). A review of the evidence of record shows development only regarding the Veteran's exposure to radiation during service. However, the Veteran has also asserted, as a part of the claim, that he was also exposed to asbestos while on active duty which caused CLL. Specifically, in a March 2008 statement from the Veteran in support of his claim, the Veteran explicitly claims that he believes that his CLL may have been caused by exposure to asbestos during service. The Board notes that while the VA acquired an IME in June 2016 with regard to the claim for CLL, that medical opinion was strictly focused on the Veteran's exposure to ionized radiation. Therefore, that opinion must be considered incomplete as it is silent on any possible nexus between asbestos exposure and CLL. A close review of the competent medical evidence shows that the record does not include any other examination or opinion regarding whether the Veteran's CLL is due to possible exposure to asbestos or to any other incident or incurrence of active service. Accordingly, the Board finds that the development of the claim for service connection to be incomplete, and that an addendum VA medical nexus opinion is required for the VA to fulfill the duty to assist the Veteran. With regard to the claim for service connection for a left knee disability, the Board finds that the Veteran's most recent VA examination in June 2013 is incomplete,. The June 2013 VA examiner noted a review of the Veteran's claims file and medical history, with an in person examination of the Veteran. However, in providing an opinion regarding the etiology of the left knee disability, the examiner did not account for or discuss any of the Veteran's claimed left knee problems during service, which are noted in the service medical records. Instead, the VA examiner noted in the medical history section of the examination report that there was no evidence that the Veteran had any left knee injury during service. The Board notes that a review of the Veteran's service medical records shows that the Veteran noted in a report of medical history prior to separation from active service in December 1983 and October 1984 that he had a left knee injury during service form a motorcycle accident, and that he had a lock/trick knee, swelling, and a history of internal derangement. That injury to the Veteran's left knee was also recorded in an earlier July 2008 VA examination regarding the Veteran's orthopedic disabilities, to include his knees. Consequently, the Board finds that the June 2013 VA opinion regarding the etiology of the Veteran's left knee condition to be incomplete. The VA examiner's negative nexus opinion was not based on an accurate factual basis as the examiner did not address or discuss any potential in-service injury to the left knee, and therefore that opinion is incomplete for consideration on the merits. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, an addendum opinion must be obtained prior to any appellate review or adjudication . In addition, entitlement to TDIU was denied in a March 2016 rating decision. The Veteran filed a March 2016 notice of disagreement to that denial. However, no statement of the case has been issued. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case on the issue of entitlement to TDIU. Notify the Veteran of his appeal rights and that he must file a timely substantive appeal to receive appellate review of that claim. If a timely substantive appeal is received, return the claim to the Board. 2. Identify and obtain any outstanding VA and private treatment records not already of record in the claims file. 3. Attempt to verify the Veteran's claimed asbestos exposure during service in compliance with the provisions of VA's Adjudication Procedure Manual. 4. Schedule the Veteran for a VA examination of the left knee with a medical doctor orthopedist. The examiner must review the claims file and should note that review in the report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a left knee disability is related to service, to include documented complaints of keen problems and a motorcycle accident during service. The examiner's attention is directed to the Veteran's service medical records documenting a complaint of an in-service accident that caused injury to his left knee. The examiner should specifically address the December 1983 and October 1984 reports of medical history by the Veteran. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a left knee disability was caused by a service-connected disability, to include a left ankle disability or left lower extremity radiculopathy. The examiner should further provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a left knee disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected disability, to include a left ankle disability or left lower extremity radiculopathy. 5. Schedule the Veteran for a VA examination of CLL with a medical doctor. The examiner must review the claims file and should note that review in the report. The examiner should provide opinions as to whether it is at least as likely as not (50 percent probability or greater) CLL, had its onset in service or is etiologically related to service. The examiner must explicitly address both radiation exposure, and asbestos exposure (if verified), in addition to any etiological relationship to any other aspect of the Veteran's active service, as it relates to the CLL. The examiner should opine whether it is as likely as not (50 percent probability or greater) that the Veteran's CLL is etiologically related to exposure to ionized radiation during service. The examiner should opine whether it is as likely as not (50 percent probability or greater) that the Veteran's CLL is etiologically related to any injury, event, or disease during active duty. If the Veteran's asbestos exposure is verified, the examiner should opine whether it is as likely as not (50 percent probability or greater) that the Veteran's CLL is etiologically related to exposure to asbestos during service. The examiner is asked to reconcile any opinion on etiology with the conclusions of the June 2016 IME and the private opinions provided by the Veteran's private physicians in February 2011. Any additional examinations or tests that the examiner deems necessary should be provided. The rationale for all opinions expressed should be provided. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015). Department of Veterans Affairs