Citation Nr: 21003588 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-28 176 DATE: January 22, 2021 REMANDED Entitlement to service connection for bilateral knee disabilities is remanded. Entitlement to service connection for basal cell carcinoma is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in July 2019, on which occasion the Board denied service connection for bilateral knee disabilities and remanded the basal cell carcinoma claim for further development. The Veteran appealed the Board’s denial of the knee claim to the Court of Appeals for Veteran’s Claims (Court) In an October 2020 Joint Motion for Partial Remand (JMR) the Court remanded the knee claim to the Board to address due process deficiencies. Another issue of service connection for bilateral hearing loss denied by the Board in July 2019 was not appealed to the Court and thus is no longer on appeal. The Board remanded the basal cell carcinoma claim a second time in a July 2020 decision which disposed of another appeal, an increased rating for PTSD. The remanded issues of service connection for the bilateral knee disorder and basal cell carcinoma are returned to the Board for further consideration. 1. LEFT AND RIGHT KNEE disability is remanded. As pointed out by the JMR, remand is warranted to obtain an examination to address the nature and etiology of his left knee disability. In his December 2014 claim and again in his September 2015 NOD, the Veteran reported that while in Vietnam during combat operations he was involved in an explosion and thrown about 20-30 feet in the air and injured both knees but did not receive treatment at the time. He reported having received treatment at VAMC in California and was told he has arthritis. The Veteran reported with right knee pain after hitting his knees in August 2012 with mild arthritis diagnosed by X-ray of the right knee in September 2012, and later reported bilateral knee pain in June 2015. Given his lay history of an in-service knee injury under combat conditions and his allegations of ongoing bilateral knee symptoms, a VA examination should be obtained to address the etiology of his bilateral knee complaints. 2. BASAL CELL CARCINOMA (AO) is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for basal cell carcinoma. Another remand is thus required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The prior remand of July 2020 specifically directed that the Veteran be examined by a physician to address the etiology of his basal cell carcinoma. The August 2020 examination obtained was conducted by a nurse practicioner. Furthermore, the examiner was asked to review the evidence prior to obtaining an opinion, which included addressing whether it is more likely than not that basal cell carcinoma was caused by the Veteran’s sun exposure while serving in the Republic of Vietnam. Some of this evidence, including pertinent treatment records from 2009 through 2013, was received in October 2020 after the examination was conducted. Finally it is noted that an incorrect legal standard was provided in the instructions to the August 2020 examiner, who was asked if it was more likely than not is that any basal cell carcinoma is caused by the appellant’s sun exposure, when the standard is “as likely as not” (at least a 50 percent likelihood) The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a physician to address the nature and etiology of any diagnosed basal cell carcinoma, to include exposure to herbicide agents. The examining physician must be provided access to the Veteran’s VBMS and Virtual VA files, and a copy of this remand. Following the examination, the physician must address whether it is at least as likely as not that any basal cell carcinoma is related to the appellant’s active duty service, to include exposure to herbicide agents. In addressing this question, the physician must consider the treatise evidence provided by the Veteran indicating the connection between sun exposure and basal cell carcinoma. Then the physician must determine whether it is as likely as not that any basal cell carcinoma is caused by the appellant’s sun exposure while serving in the Republic of Vietnam. 2. Schedule the Veteran for a VA examination for his bilateral knee disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Does the Veteran have a current disability of the right knee and/or left knees? For all knee disabilities identified, state whether it is at least as likely as not related to service, including a reported injury under combat conditions when he was involved in an explosion and thrown about 20-30 feet in the air and injured both knees? This opinion should be accompanied by adequate rationale. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carol Eckart 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.