Citation Nr: 21072220 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-39 925A DATE: December 2, 2021 REMANDED Entitlement to service connection for a right knee disability for accrued benefits purpose is remanded. Entitlement to service connection for a left knee disability for accrued benefits purpose is remanded. Entitlement to service connection for a neurological condition for accrued benefits purpose is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity for accrued benefits purpose is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity for accrued benefits purpose is remanded. Entitlement to service connection for skin cancer for accrued benefits purpose is remanded. Entitlement to service connection for chronic headaches, to include as secondary to service-connected tinnitus, for accrued benefits purpose is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1961 to July 1965. Unfortunately, during the pendency of his appeal, the Veteran passed away in June 2017. The appellant is his surviving spouse and has been formally substituted in his appeal. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2021, the Board previously remanded these claims for additional development following a July 2020 hearing. As will be discussed in more detail below, remand is again necessary regarding each of the claims to ensure substantial compliance with the April 2021 remand directives and that the VA opinions obtained are adequate to resolve the pending claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a right knee disability for accrued benefits purpose is remanded. 2. Entitlement to service connection for a left knee disability for accrued benefits purpose is remanded. The appellant contends the Veteran had right and left knee disabilities that were related to service and continued after separation. The Board finds remand is again necessary to ensure substantial compliance with the April 2021 remand directives and that an adequate VA opinion is obtained. During the Veteran's VA examination in 2014, the Veteran endorsed falling down during service due to slippery ice and snow. This contention was also asserted within lay statements of record including the July 2020 hearing when the appellant testified that the Veteran fell on the snow and sought medical attention. Additionally, the appellant asserted that the Veteran injured his knees during squadron training. The appellant stated that the Veteran experienced ongoing pain during and post-service. Thus, the Board remanded these claims for another VA examination considering the lay assertions of record, which occurred in May 2021. The May 2021 VA examiner offered a negative nexus opinion based, in-part, on the rationale that there was no evidence of knee symptoms until 35 years after service. Despite the Board's April 2021 remand directives for consideration of the lay assertions, however, the May 2021 VA examiner failed to address or reconcile the lay statements of the Veteran's symptoms and persistence. Thus, remand is again necessary to obtain an addendum opinion considering the lay statements of record. 3. Entitlement to service connection for a neurological condition for accrued benefits purpose is remanded. 4. Entitlement to service connection for peripheral neuropathy of the right upper extremity for accrued benefits purpose is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity for accrued benefits purpose is remanded. The appellant contends the Veteran had a neurological condition and peripheral neuropathy of the right upper and right lower extremities that were related to service and continued after separation. The Board finds remand is again necessary to ensure substantial compliance with the April 2021 remand directives and that an adequate VA opinion is obtained. A VA opinion was obtained in May 2021 during which the VA examiner opined that the Veteran's claimed conditions were less likely than not incurred in or caused by service based on the rationale that review of the medical record and service treatment records (STRs) showed no evidence of a diagnosis, treatment, or symptoms suggestive of a neurological disability of the right upper extremity, right lower extremity, or any other neurological disability during service or in the year following separation. The Veteran stated that during his service, he developed a tingling sensation on the right side of his body from the head to foot that would come and go and continued after separation. The Veteran endorsed seeing a base doctor. The appellant testified that she noticed the Veteran had right sided symptoms. She stated that the Veteran was admitted for testing resulting in a diagnosis of "wearing down of the tissue around his nervous system." The Board directed consideration of the lay assertions of record as part of the April 2021 remand directives, however, the May 2021 VA examiner failed to address or reconcile these assertions. Accordingly, remand is necessary for an addendum opinion addressing the lay statements of record. 6. Entitlement to service connection for skin cancer for accrued benefits purpose is remanded. The appellant contends the Veteran had skin cancer that was caused by or incurred during service, to include as a result of contended radiation exposure. The Board finds the evidence of record is insufficient to resolve his claim. As skin cancer is a radiogenic disease under 38 C.F.R. § 3.311, as part of the Board's April 2021 remand, the Board directed the RO to complete the additional procedural development regulations for claims based on exposure to ionizing radiation under 38 C.F.R. § 3.311. While the RO requested dose information and received a response from the Chief from Medical Radiation Health Operations finding no external or internal occupational radiation exposure data for the Veteran, the RO failed to forward all of the records pertaining to the Veteran's contended radiation exposure in service to the Under Secretary for Health as previously directed. As such, remand is again necessary to ensure substantial compliance with the Board's April 2021 remand directives regarding 38 C.F.R. § 3.311. Additionally, upon review the Board notes the record contains multiple private provider opinions discussing a possibility that the Veteran's skin cancer was related to in-service sun exposure. These opinions fail to state whether it is at least as likely as not the Veteran's skin cancer was related to service. Further, the private opinions fail to state whether the providers reviewed the Veteran's STRs and do not address the possibility that sun exposure before and / or after service may have caused the Veteran's condition. To date, a VA opinion has not been obtained addressing whether the Veteran's skin cancer could have been related to contended in-service sun exposure. As there is insufficient medical evidence of record to establish the Veteran had skin cancer that was related to in-service sun exposure, the Board finds a VA opinion is necessary to resolve this claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, this claim is remanded for additional development. 7. Entitlement to service connection for chronic headaches, to include as secondary to service-connected tinnitus, for accrued benefits purpose is remanded. The appellant contends the Veteran had chronic headaches that were related to service or were secondary to service-connected tinnitus. The Board finds remand is again necessary to ensure substantial compliance with the April 2021 remand directives and that an adequate VA opinion is obtained. A VA opinion was obtained in May 2021 during which the examiner opined that the claimed condition was less likely than not incurred in or caused by service based, in-part, on the rationale that review of medical records and STRs show there was no evidence of a diagnosis, treatment, or symptoms suggestive of a headache / migraine during service or within a year of separation. The examiner, however, failed to address or reconcile the lay statements of record when the Veteran stated that he experienced headaches during service and repeatedly hit his head on concrete after slipping on ice. See Miller v. Wilkie, 32 Vet. App. 249 (2020). The VA examiner also opined in May 2021 that the Veteran's headaches were less likely than not aggravated by his service-connected tinnitus. The examiner reasoned that while it is noted headaches can cause the perception of tinnitus, there is no evidence tinnitus causes or permanently aggravates headaches beyond its natural progression. The examiner, however, is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). To this point, the appellant testified that the Veteran conveyed experiencing headaches and tinnitus often at the same time and sometimes with tinnitus symptoms preceding a headache or a headache preceding tinnitus symptoms. As such, remand is necessary to obtain an addendum opinion addressing whether the Veteran's headaches were aggravated by his service-connected tinnitus. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Accordingly, remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the May 2021 VA examiner, if available, or to another appropriate examiner. The examiner should render an opinion addressing the following: - Whether the Veteran had a right and / or left knee disability, to include arthritis? - For any arthritis diagnosis, is it at least as likely as not that the arthritis (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the lay evidence of record contending that the Veteran experienced falls in the snow and on ice prompting medical attention as well as injuries during squadron training causing pain during service that remained persistent after separation. - Whether it is at least as likely as not any disability of the right and / or left knee was caused by or incurred during service, to include falls in the snow and on ice or injuries during squadron training. In so opining, the examiner is directed to address and consider the lay evidence of record contending that the Veteran experienced falls in the snow and on ice prompting medical attention as well as injuries during squadron training. 2. Return the entire claims file and this remand to the May 2021 VA examiner, if available, or to another appropriate examiner. The examiner should render an opinion, including rationale, addressing the following: - Whether the Veteran had a neurological condition and / or peripheral neuropathy of the right upper and right lower extremities? If a diagnosis cannot be provided but the Veteran's condition manifested in symptoms that caused functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. - For any neurological condition and / or peripheral neuropathy of the right upper and right lower extremities, is it at least as likely as not it (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the lay evidence of record including the Veteran's statements of experiencing a tingling sensation on the right side of the body from the head to foot that would come and go and continued after separation. - Whether any neurological condition and / or peripheral neuropathy of the right upper and right lower extremities was at least as likely as not caused by or incurred during service. 3. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), forward the Veteran's records concerning his contended radiation exposure, including any service records, statements and testimony regarding radiation exposure, and the information obtained from the Chief, Medical Radiation Health Operations, to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. If a specific estimate cannot be made, a range of possible doses should be provided. If more information from the appellant is required regarding specifics of the Veteran's alleged exposure, she should be contacted and asked to provide the information. If the above-requested development results in a positive dose estimate, refer the claim of entitlement to service connection for skin cancer to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). 4. Return the entire claims file and this remand to an appropriate examiner for review to determine the nature and etiology of the Veteran's skin cancer condition. The entire claims file and this remand should be made available for review. The examiner should render an opinion, including rationale, as to whether it is at least as likely as not the Veteran had a skin cancer that was related to service, to include contended sun exposure. In so opining, the examiner is directed to address the private opinions discussing a possible association between in-service sun exposure and skin cancer. 5. Return the entire claims file and this remand to the May 2021 VA examiner, if available, or to another appropriate examiner for review. The examiner should render an addendum opinion, including rationale, addressing the following: - Whether it is at least as likely as not the Veteran had a migraine headache disability that (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In so opining, the examiner is directed to address and consider the lay statements of record that the Veteran experienced headaches during service. - Whether the Veteran had a headache disability that was at least as likely as not caused by or incurred during service, to include hitting the head on concrete after falling on ice. - Whether it is at least as likely as not the Veteran had a headache disability that was aggravated by his service-connected tinnitus. In so opining, the examiner is specifically directed to consider the appellant's testimony addressing the interaction between the Veteran's headaches and tinnitus as well as the Veteran's lay statements of record. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. (Continued on the next page) If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, Associate 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.