Citation Nr: 21010843 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-27 972 DATE: February 25, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right knee disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for an eye disorder is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for skin cancer as a result of asbestos exposure is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for an eye disorder is remanded. FINDINGS OF FACT 1. In an unappealed decision issued in March 1978, the Agency of Original Jurisdiction (AOJ) denied service connection for a right knee disorder. 2. Evidence associated with the record since the final March 1978 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim for service connection for a right knee disorder. 3. In an unappealed decision issued in March 1978, the AOJ denied service connection for an eye disorder. 4. Evidence associated with the record since the final March 1978 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim for service connection for an eye disorder. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a right knee disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim for service connection for a back disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to November 1966 and from January 1967 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A previously appealed claim for service connection for diabetes mellitus was granted in March 2020 and is therefore no longer on appeal. New and Material Evidence The Board must address the question of whether new and material evidence has been received since the noted March 1978 rating decision, which was unappealed and is final. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the issuance of the March 1978 rating decision that found the Veteran did not have a right knee or eye disability, he has submitted evidence that shows he has a diagnosis of bilateral osteoarthritis of the knees and had bilateral knee replacement surgery in 2011. He testified that he injured his knees in service working as a boiler repairman hitting his knees climbing in and out of the boilers. In addition, he submitted evidence showing a diagnosis of diabetic retinopathy of his eyes. He also testified that his vision has worsened, and he has symptoms including watering, seeing spots, and scarring tissue from his military occupational specialty as a boiler repairman, which caused flash burns and metal debris to fly into his eyes. The Board finds that this evidence raises a reasonable possibility of substantiating the Veteran’s claims by supporting the current disability and in-service injury elements required for establishing entitlement to service connection for right knee and eye disorders. Consequently, the Board finds that the evidence associated with the record since the final March 1978 denial is neither cumulative nor redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for right knee and eye disorders. As such, new and material evidence has been received, and the claims are reopened. REASONS FOR REMAND Skin cancer The Veteran asserts that his development of skin cancer and residuals thereof are due to his exposure to asbestos and radiation in service, as well as the rigors of his duties as a boiler repairman. A January 1972 document notes the Veteran’s physical qualification for duties involving exposure to ionizing radiation. The Veteran further asserts his boiler repairman and radiation removal program duties required him to work on ships that were contaminated with asbestos and radiation. However, the record does not contain sufficient evidence regarding the Veteran’s asserted radiation exposure. Accordingly, VA should develop the claims as directed under 38 C.F.R. § 3.311 regarding claims based on exposure to radiation. Similarly, the Veteran has alleged that he was exposed asbestos; however, the RO has not corroborated his exposure to asbestos. On remand, additional efforts should be made to determine whether there is any objective evidence that the Veteran was exposed to asbestos during service. As the record indicates that the Veteran’s skin cancer could be related to his active service, a VA opinion must be provided to make an informed decision on this claim. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Right and left knee disorders As noted above, the Veteran asserts that his bilateral knee problem had its onset in service and is due to the rigors of service and his duties as a boiler repairman. Service treatment records (STRs) show complaints of pain and numbness in the right knee, as well as general musculoskeletal pain. Medical records indicate that he has osteoarthritis of the knees and underwent bilateral total knee replacement surgery. He further complains of a constant, dull pain in both knees. The Board notes that the Veteran has not been afforded a VA examination for his knees. Given the above, the Board finds there is insufficient information to make a decision on the Veteran’s claim and that the low threshold for providing a VA examination, in order to obtain a medical opinion, has been met in this case. See 38 U.S.C. § 5103A; McClendon v. Nicholson, supra. Eye disorder As noted above, the Veteran asserts that his eye-related issues had their onset in service and are due to the rigors of service and his duties as a boiler repairman. STRs show complaints of photophobia, inflammation, trouble with vision, foreign bodies in eyes, and flash burns. Medical records show continued complaints of blurry vision, tearing, and itchiness and indicate a diagnosis of mild diabetic retinopathy. The Veteran contends that these issues are due to the metal debris that would get into his eyes and flash burns experienced as a boiler repairman in service. The Board notes that the Veteran has not been afforded a VA examination for his eyes. Given the above, the Board finds there is insufficient information to make a decision on the Veteran’s claim and that the low threshold for providing a VA examination, in order to obtain a medical opinion, has been met in this case. See 38 U.S.C. § 5103A; McClendon v. Nicholson, supra. In addition, the record notes the Veteran has retinopathy that is related to his diabetes mellitus; however, it is unclear whether his eye-related symptoms are related to his diabetes mellitus on a secondary basis or to the in-service injuries asserted by the Veteran. Therefore, the Board finds that an additional opinion is required that addresses whether the Veteran’s eye symptoms are related on a secondary basis to his service-connected diabetes mellitus. The matters are REMANDED for the following action: 1. Develop the Veteran’s assertion that he was exposed to radiation in service. If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion. If more details are needed, contact the Veteran to request the information. 2. Arrange for any further development and make formal findings of fact for the record regarding the nature and extent of the Veteran’s exposure to asbestos during service. 3. After the above development has been completed, obtain a medical opinion from a/an appropriate VA examiner(s) to determine the nature and etiology of the Veteran’s skin cancer and/or residuals. The entire claims file and a copy of this REMAND must be made available to the examiner. The examiner must note in the examination report that the evidence in the claims file has been reviewed. An examination may be conducted, if deemed necessary, but is not required here. The examiner must then address whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s skin cancer and/or residuals thereof had its clinical onset during active service or is related to any incident of service, to include claimed exposure to asbestos and radiation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology must be specifically acknowledged and considered in formulating any opinions concerning the onset of his disability. If the examiner rejects the Veteran's reports regarding the onset of symptoms, the examiner must provide a reason for doing so. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Schedule a VA orthopedic examination to obtain an opinion that assesses the nature and etiology of the Veteran’s bilateral knee disorder. The examiner should provide an opinion as to whether the Veteran’s bilateral knee disorder (right and left knees) is at least as likely as not (a 50 percent or greater probability) due to an in-service injury, event, or disease. The examiner should address the Veteran’s in-service reports of knee-related symptoms and statements regarding the rigors of his duties as a boiler repairman. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide a detailed and medically-supported rationale for all opinions given. 5. Schedule a VA eye examination to obtain an opinion that assesses the nature and etiology of the Veteran’s eye disorder. The examiner should address the following: (a) identify any eye disorders that have been present during the appeal period (August 2017). (b) whether any diagnosed eye disorder is at least as likely as not (a 50 percent or greater probability) due to an in-service injury, event, or disease. The examiner should address the Veteran’s in-service reports of eye-related symptoms and statements regarding the rigors of his duties as a boiler repairman, including getting metal debris in his eyes and experiencing flash burns. (c) whether any diagnosed eye disorder is at least as likely as not (a 50 percent or greater probability) proximately due to, or aggravated beyond its natural progression, by the service-connected diabetes mellitus. The examiner must address both causation and aggravation for the opinions to be deemed adequate. The examiner should be aware that Ward v. Wilkie, 31 Vet. App. 233 (2019) held that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner should provide a detailed and medically-supported rationale for all opinions given. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.