Citation Nr: 20046434 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 11-12 921 DATE: July 10, 2020 REMANDED Entitlement to service connection for left ankle disability is remanded. Entitlement to service connection for right ankle disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for residuals of squamous cell carcinoma of the nasal septum is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1974 to May 1977 and from August 1984 to July 1992. The Veteran died in March 2017, and his spouse has been substituted as the appellant. This appeal arises from an August 2009 rating decision. In June 2013, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In February 2020, a notice letter was sent to the appellant’s address with a copy to the appellant’s representative indicating that the VLJ who conducted the June 2013 Board hearing was no longer a member of the Board. No response was received. 1. Entitlement to service connection for left ankle disability is remanded. 2. Entitlement to service connection for right ankle disability is remanded. 3. Entitlement to service connection for right knee disability is remanded. 4. Entitlement to service connection for left knee disability is remanded. In September 2014, the Board remanded this matter to obtain VA examination with opinion as to whether the Veteran’s knee and ankle conditions had an onset in service or are otherwise related to service. As noted in the September 2014 remand, the Veteran’s service treatment records contain left and right knee and ankle complaints. The Veteran reported intermittent ankle and knee pain following service. No VA examination was obtained and the Veteran, unfortunately, passed away in the interim. The claims file contains extensive records, including VA treatment records until March 2017 and the Board find a VA medical opinion is still necessary to appropriately decide the issues on appeal. Accordingly, remand is appropriate to obtain VA medical opinion as to whether the Veteran’s knee and ankle conditions had an onset in service or are otherwise related to service. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Entitlement to service connection for residuals of squamous cell carcinoma of the nasal septum is remanded. The Veteran filed a claim for service connection for residuals of squamous cell carcinoma of the nasal septum. The Veteran reported that he was exposed to radiation and/or toxic chemicals during service as well as sun exposure during his Gulf War deployment. He testified that, while deployed, there were several alerts from the chemical detection equipment, and that it was his job to recover damaged equipment and dispose of it safely. He served in Southwest Asia from August 1990 to March 1991 with a primary specialty of Chemical Operations Specialist. The claims file shows exposure to hazardous materials during Gulf War service. See June 2019 DOEHRS report. The Veteran reported skin problems beginning in the Gulf War. A February 2006 private physician noted that the Veteran had an unusual intranasal carcinoma and was asked to comment as to whether handling hazardous materials could have contributed to the development of the carcinoma. The physician opined that the carcinoma was quite unusual and only very rarely seen and therefore there is a distinct possibility that work carcinogens may have contributed to the development of the carcinoma. A December 2015 VA treatment record regarding the Veteran’s prostate cancer notes the Veteran’s squamous cell carcinoma of the nasal septum. The physician noted the Veteran’s reports of exposure to chemical, biologic, and nuclear material during service, and opined that given the Veteran’s multiple aggressive malignancies it is very possible that what he was exposed to during service contributed to his current medical status. In light of the above, remand is appropriate to obtain VA medical opinion as to whether the Veteran’s residuals of squamous cell carcinoma of the nasal septum are related to service, to include his Gulf War exposures. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As to the Veteran’s report of in-service radiation, the Regional Office conducted additional development following the September 2014 Board remand. While this matter is on remand, the claims file should be sent to the Jackson Regional Office or the appropriate location and any additional development warranted should be conducted to determine whether the Veteran was exposed to ionizing radiation during service. The matters are REMANDED for the following action: 1. Send claims file to the Jackson Regional Office or the appropriate location and conduct any additional development warranted to determine whether the Veteran was exposed to ionizing radiation during service. 2. Ask the appropriate examiner to review the claims file. The examiner should identify any left or right knee and left or right ankle disability the Veteran presented at any time during the claims period. For each such disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability had an onset in service or is otherwise related to service. For any arthritis disability, the examiner should also opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability manifested to a compensable degree within one year of separation from service (i.e., July 1993). If there is no diagnosed disability that the Veteran’s symptoms can be attributed to, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran’s Persian Gulf War service. The examiner should consider all medical and lay evidence of record, including the left ankle injuries in March 1976, in August 1976, and in April 1985, right ankle pain in December 1974, a fall on his left knee while running in March 1975, and an episode of pain in September 1984, complaints of right knee pain in March 1975 and September 1984, as noted in the service treatment records, and the Veteran’s report of continuing symptoms. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Following the actions described in paragraph 1, ask the appropriate examiner to review the claims file. The examiner should opine as to whether the Veteran’s squamous cell carcinoma of the nasal septum (resected and radiated in 1998) is at least as likely as not (a 50 percent or greater probability) related to service, to include the Veteran’s exposures during his service including his Gulf War service. The examiner should consider all medical and lay evidence of record, including the opinions of the February 2006 private physician and the December 2015 VA physician and the Veteran’s reports of exposure to hazardous materials during service, including his June 2013 Board hearing testimony. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, Counsel 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.