Citation Nr: 21013864 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-14 232 DATE: March 10, 2021 ORDER Reopening of the claim for service connection for a left knee disability is granted; the appeal is granted to this extent only. Reopening of the claim for service connection for a right knee disability is granted; the appeal is granted to this extent only. Entitlement to service connection for a left lower eyebrow disability is granted. REMANDED Entitlement to service connection for thyroid cancer is remanded. Entitlement to service connection for esophageal cancer, to include as secondary to thyroid cancer, is remanded. Entitlement to service connection for lung cancer, to include as secondary to thyroid cancer, is remanded. Entitlement to service connection for lymph node cancer, to include as secondary to thyroid cancer, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left eye disability is remanded. FINDINGS OF FACT 1. A February 2013 rating decision denied service connection for left and right knee disabilities. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The evidence associated with the claims file subsequent to the February 2013 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for a left knee disability. 3. The evidence associated with the claims file subsequent to the February 2013 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for a right knee disability. 4. A left lower eyelid disability is shown to be causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The February 2013 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for a left knee disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence sufficient to reopen the claim of service connection for a right knee disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a left lower eyebrow disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1961 to March 1965. The Veteran passed away in January 2021, and the appellant has been substituted on the current appeal as the Veteran’s surviving spouse. 38 U.S.C. § 101(3). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2019 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and the appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. A transcript of the hearing is of record. The Veteran, as a layperson, is not competent to distinguish between competing diagnoses, and so a claim of service connection for one is considered a claim for all. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran filed a claim for service connection for left eye blindness, but the record reflects a history of left eye cataracts and corneal transplants. As such, the issue has been recharacterized the claim as one for service connection for a left eye disability. While the Veteran was represented by the Georgia Department of Veterans Services during his life, a power of attorney does not survive a Veteran’s death or transfer to an individual who is substituted on a pending appeal. To date, the appellant has not submitted a power of attorney form appointing her own representative. As such, the appellant will be treated as pro se in the current appeal. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms “new” and “material” for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). “Relevant” means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 1341–43 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. 1. Reopening claims for service connection for left and right knee disabilities. As the facts and analysis for both claims to reopen are substantially the same, the Board will address them together for the purposes of brevity. The RO last denied service connection for left and right knee disabilities in February 2013. The Veteran was notified of the decision but did not submit a notice of disagreement. No new, relevant service department records have been associated with the file since that decision, nor was any new and material evidence associated with the file during the appellate period. 38 C.F.R. § 3.156(b), (c); see Lang v. Wilkie, 971 F.3d 1348, 1353–55 (Fed. Cir. 2020).Therefore, the February 2013 decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in February 2013 consisted of the Veteran’s service treatment records, VA examination reports, and private treatment records. The evidence of record failed to show that the Veteran’s left or right knee disability was causally related to service. Evidence received since the rating decision includes additional treatment records, VA examination reports, and the Veteran’s November 2020 hearing testimony. Of particular note, during the November 2020 hearing the Veteran appeared to indicate that he had experienced persistent knee issues since his in-service injury. Further, as part of his initial claim for benefits the Veteran alleged that his knee disabilities were due to the physical work he performed while working on the flight line. These statements are competent, and for the purposes of reopening it is presumed credible. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of a nexus between the left and right knee disabilities and service, and further identify another potential in-service injury. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claims for service connection for left and right knee disabilities is warranted. 38 C.F.R. § 3.156(a). Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). 2. Entitlement to service connection for a left lower eyelid disability. In a November 2018 opinion, a VA examiner indicated that the Veteran had a bump on his left lower eyelid. Further, service treatment records reflect that while in service the Veteran was treated for a cystic mass on the lower lid of the left eye. As such, current disabilities and an in-service injury or disease have been shown. Concerning a nexus, the November 2018 examiner stated that it was at least as likely as not that the left lower eye lid bump was caused by the cystic mass noted to be on the left eye during service. There is no evidence the examiner was not competent or credible, and therefore the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). No other etiological opinions are of record. Based on the foregoing, the Board finds that the evidence of record shows that the Veteran’s left lower eyelid disability was causally related to his in-service treatment for a cystic mass of the left lower eyelid. Therefore, service connection is warranted on a direct basis. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for cancers of the thyroid, esophagus, lung and lymph nodes. As part of his initial claim for benefits, the Veteran asserted that his thyroid cancer was possibly due to radiation exposure. As the Veteran does not meet the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309, his contentions fall under the provisions of 38 C.F.R. § 3.311. Section 3.311 first requires that the Veteran have a radiogenic disease, which includes not only the claimed thyroid cancer but also his claimed esophageal, lung and lymph node (lymphoma) cancers. 38 C.F.R. § 3.311(b)(2). As such the Veteran has radiogenic diseases for the purposes of 38 C.F.R. § 3.311. Next, the regulation requires that the Veteran contend that the radiogenic disease is a result of exposure to ionizing radiation in service. 38 C.F.R. § 3.311(a)(1). As noted, the Veteran asserted that his thyroid cancer was due to radiation generally. However, read sympathetically, this assertion would naturally include an allegation of exposure to ionizing radiation. Further, while the Veteran asserted in-service radiation exposure only as to the thyroid cancer, as all four claimed cancers are radiogenic diseases the theory is equally applicable to the other claimed cancers. As the Veteran’s claimed radiation exposure was not due to atmospheric nuclear weapons test participation or the occupation of Hiroshima or Nagasaki, all records demonstrating ionizing radiation exposure in service should be forwarded to VA’s Under Secretary for Health, or designee, for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Although the Board recognizes that the Veteran’s claims do not necessarily suggest or demonstrate exposure to ionizing radiation, in light of the requirements of 38 C.F.R. § 3.311 the claims must be remanded to obtain a dose estimate from the Under Secretary for Health. 2. Entitlement to service connection for a low back disability VA obtained an opinion concerning the Veteran’s low back disability in November 2018. The examiner stated that it was less likely than not that the low back disability was related to the Veteran’s service, based in part on the lack of service treatment records showing complaints of back pain. However, a review of the Veteran’s service treatment records show that he was treated for complaints of low back pain In December 1964 and January 1965. As the opinion is based at least in part on an inaccurate factual premise, the opinion is not adequate for adjudicatory purposes. Reonal v. Brown, 5 Vet. App. 458, 460–61 (1993). Therefore, a remand is necessary so that a new opinion may be obtained. 3. Entitlement to service connection for left and right knee disabilities. VA obtained an opinion concerning the Veteran’s left and right knee disabilities in February 2013. The examiner stated that it was less likely than not that the disabilities were related to the Veteran’s service, but in support of this opinion stated that it could not be determined whether the in-service knee injuries were enough to cause early onset of arthritis or whether the arthritis was due to aging. Thus, while the examiner provided a negative opinion, the supporting rationale essentially indicated that a determination could in fact not be made, which does not support the conclusion that the disabilities are not due to service. While opinions stating that an opinion cannot be rendered without resorting to speculation, such an opinion must be supported by a rationale. Jones v. Shinseki, 23 Vet. App. 382 (2010). Here, the examiner did not explain why he could not determine if the knee disabilities were due to service or due to aging. As such, the February 2013 opinion is inadequate, and a remand is necessary so that a new opinion may be obtained. 4. Entitlement to service connection for a left eye disability. VA obtained an opinion concerning the left eye chalazion in November 2018. The examiner stated that it was less likely than not that the chalazion was due to service, because the disability was treated in service and fully resolved. However, the Board notes that the Veteran’s claim was in fact for left eye blindness, not the in-service chalazion specifically. Further, the Veteran’s treatment records a medical history of cataracts and corneal transplants for the left eye. As such, the Veteran’s claim for service connection for left eye blindness encompasses these other diagnoses of record, and therefore these diagnoses should have been addressed in the November 2018 opinion. Clemons, 23 Vet. App. 1. As such, a remand is necessary for an addendum opinion addressing all other diagnosed left eye disabilities of record. The matters are REMANDED for the following action: 1. To the extent possible, in accordance with 38 C.F.R. § 3.311(a)(2)(iii), the AOJ must forward the Veteran’s records concerning his radiation exposure including any service records, his statements and testimony regarding radiation exposure, and any other information obtained while the case is Remand status 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. The resulting dose estimate must include consideration of the Veteran’s diagnoses of thyroid cancer, esophageal cancer, lung cancer, and lymphoma (lymph node cancer). If the above-requested development results in a positive dose estimate, the claim must be referred to the Under Secretary for Benefits (or designee) for consideration under 38 C.F.R. § 3.311(c). Such review should consider, and discuss as necessary, the Veteran’s reported exposure to ionizing radiation. 2. Obtain a medical opinion concerning the nature and etiology of the Veteran’s low back disability. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the low back disability is causally related to the Veteran’s active service? In answering the above, attention is invited to the Veteran’s testimony that he hurt his back doing heavy lifting in service (labelled “Hearing Transcript” – uploaded 11/24/20); and December 1964 and January 1965 service treatment records reflecting complaints of low back pain (labelled “STR - Medical” – pgs. 43, 46 – uploaded 1/28/15). A detailed rationale for the opinion must be provided. 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 against it. 3. Obtain a medical opinion concerning the nature and etiology of the Veteran’s left and right knee disabilities. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the left knee disability is causally related to the Veteran’s active service? b) Is it at least as likely as not (a fifty percent probability or greater) that the right knee disability is causally related to the Veteran’s active service? In answering questions (a) and (b), attention is invited to a July 1963 in-service x-ray and an August 1963 service treatment record noting a left knee injury playing baseball (labelled “STR - Medical” – pgs. 5, 6 – uploaded 1/28/15); and the Veteran’s argument that the left and right knee disabilities were due to the physical nature of working on the flight line and fueling planes in service. A detailed rationale for the opinion must be provided. 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 against it. 4. Obtain a medical opinion concerning the nature and etiology of the Veteran’s left eye disability. The examiner should answer the following: a) Based on a review of the file, identify all left eye disabilities. In answering question (a), attention is invited to a December 2019 VA treatment record noting a history of left eye corneal transplants and cataracts (labelled “CAPRI” – pg. 1 – uploaded 2/19/20) and the Veteran’s assertions that he was blind in the left eye. b) For each disability so identified, is it at least as likely as not (a fifty percent probability or greater) that the left eye disability is causally related to the Veteran’s active service? In answering question (b), attention is invited to September 1964 and December 1964 service treatment records noting treatment for a left eye chalazion (labelled “STR - Medical” – pgs. 7, 10 – uploaded 1/28/15). A detailed rationale for the opinion must be provided. 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 against it. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.