Citation Nr: 21024294 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-39 925A DATE: April 22, 2021 REMANDED Entitlement to service connection for a right knee disability for accrued benefits purposes is remanded. Entitlement to service connection for a left knee disability for accrued benefits purposes is remanded. Entitlement to service connection for a neurological condition for accrued benefits purposes is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity for accrued benefits purposes is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity for accrued benefits purposes is remanded. Entitlement to service connection for skin cancer for accrued benefits purposes is remanded. Entitlement to service connection for chronic headaches, to include as secondary to service-connected tinnitus, for accrued benefits purposes is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1961 to July 1965. Unfortunately, he passed away in June 2017. The appellant is his surviving spouse and has been formally substituted in this appeal. This matter comes to the Board of Veterans’ Appeals from an April 2015 rating decision of the Department of Veterans Affairs regional office (RO). In July 2020, the appellant was afforded a hearing before the Board. A transcript of the hearing is of record. 1. Entitlement to service connection for a right knee disability for accrued benefits purposes is remanded. 2. Entitlement to service connection for a left knee disability for accrued benefits purposes is remanded. 3. Entitlement to service connection for a neurological condition for accrued benefits purposes is remanded. 4. Entitlement to service connection for peripheral neuropathy of the right upper extremity for accrued benefits purposes is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity for accrued benefits purposes is remanded. Before he passed away, the Veteran asserted that his joint pain, i.e. his bilateral knee pain, was related to his service at the Elmendorf, Alaska Air Force Base (Elmendorf AFB). His spouse has explained that prior to his death, he related to her that he endured cold temperatures and sustained several injuries to his knees during his service at Elmendorf AFB. She has also asserted that the Veteran may have had knee disabilities related to playing basketball in service. Saliently, the service treatment records (STRs) document a contusion of the knee in January 1965 after a basketball injury. The appellant has also asserted that the Veteran had peripheral neuropathy of the right upper and lower extremities, as well as a neurologic condition related to his service at Elmendorf AFB. She has related that the Veteran reported an onset of neuropathy of the right upper extremity and right lower extremity, and that she feels that the Veteran had a neurologic disability related to service. Under these circumstances, it is necessary for the Board to obtain etiological opinions. The Veteran’s and the appellant’s statements suggest that the Veteran has bilateral knee disabilities, peripheral neuropathy of the right upper and lower extremities and, perhaps, a neurological disability, due to his service in Alaska. Before he passed away, the Veteran related that he had knee and neurological problems since his service in Alaska. Thus, a VA examination is warranted. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to service connection for skin cancer for accrued benefits purposes is remanded. The appellant claims that the Veteran’s skin cancer, apparently first assessed in 2011, is related to the Veteran’s service at Elmendorf AFB. She contends that the Veteran’s skin cancer, i.e. skin condition, is related to exposure to radiation and/or exposure to asbestos. Further development is required to decide this claim. Along these lines, the Board notes that it does not appear that the Veteran qualifies as a radiation exposed Veteran under 38 C.F.R. § 3.309(d)(3). Nevertheless, development in this regard is appropriate under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311 is a procedural framework for development of claims based on exposure to ionizing radiation. Pursuant to 38 C.F.R. § 3.311, radiogenic diseases include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin’s disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2) (emphasis added). Because the Veteran’s skin cancer is set forth in 38 C.F.R. § 3.311(b)(2) as a radiogenic disease, the procedural development regulations for claims based on exposure to ionizing radiation are applicable. The regulation calls for a request for dose information and a request to obtain a dose assessment for the Veteran. See 38 C.F.R. § 3.311(a). For claims involving atmospheric nuclear weapons test participation and the occupation of Hiroshima and Nagasaki, dose data will be requested from the Department of Defense. 38 C.F.R. § 3.311(a)(2)(i), (ii). In this case, the Veteran did not participate in those types of events. Therefore, his claim is covered by 38 C.F.R. § 3.311(a)(2)(iii) for “other exposure claims.” For other exposure claims, a request will be made for any available records concerning the Veteran’s exposure to radiation. In addition to the dose information request, the regulation compels the forwarding of all records pertaining to the Veteran’s radiation dose in service to the Under Secretary for Health. He or she will be responsible for the preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Accordingly, a request must be made for any available records concerning the Veteran’s exposure to radiation. Thereafter, all the available records concerning the Veteran’s exposure to radiation are to be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate. Once the dose estimate is prepared, before the claim is re-adjudicated, it must be referred to the Under Secretary of Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). See 38 C.F.R. § 3.311(b)(1). This regulation indicates that the Under Secretary for Benefits will make a determination as to whether it is at least as likely as not that the late Veteran’s skin cancer resulted from exposure to radiation in service. 38 C.F.R. § 3.311(c)(1)(i). 7. Entitlement to service connection for chronic headaches, to include as secondary to service-connected tinnitus, for accrued benefits purposes is remanded. The appellant has indicated that the Veteran’s headaches might be related to his service-connected tinnitus. She has related that the Veteran suffered from headaches, during which he had spells of tinnitus. Under these circumstances, a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate medical professional for the purpose of ascertaining the current nature and likely etiology of the claimed disabilities of the left and right knee. The claims folder should be made available to the medical professional. The examiner must review the record, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. A notation to the effect that this record review took place shall be included in the report of the examiner. The examiner is asked to address whether it is at least as likely as not (a 50 percent probability or more) that the Veteran incurred a disability of the left knee and/or right knee, in service, or that any diagnosed disability of the left or right knee, is otherwise attributable thereto, including the Veteran’s in-service basketball injury. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Obtain an opinion from an appropriate medical professional for the purpose of ascertaining the current nature and likely etiology of the claimed neuropathy of the right upper extremity, the claimed neuropathy of the right lower extremity and the neurological disorder. The claims folder should be made available to the medical professional. The examiner must review the record, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. A notation to the effect that this record review took place shall be included in the report of the examiner. The examiner is asked to address whether it is at least as likely as not (a 50 percent probability or more) that the Veteran incurred a neurological disability of the right upper extremity, the right lower extremity, or any other neurological disability in service, or that any such diagnosed disability, is otherwise attributable to service, to include exposure to cold temperatures while stationed in Alaska. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Request any available records concerning the Veteran’s exposure to radiation from the appropriate agency. Perform all follow-up as necessary, and document negative results. A negative response is required, unless the RO determines that any efforts to obtain these records are futile. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), forward the Veteran’s records concerning his radiation exposure, including any service records, statements and testimony regarding radiation exposure, and any other information obtained from the above information request, 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, he 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. Obtain an opinion from an appropriate medical professional to determine the nature and etiology of any headaches. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine whether it at least as likely as not that migraine headaches (1) began during active service, (2) manifested within a year after discharge from service, or (3) were noted during service with continuity of the same symptomatology since service. The examiner must opine whether it is at least as likely as not that any migraine headaches are (1) proximately due to service-connected disability, particularly tinnitus and/or hearing loss, or (2) aggravated beyond their natural progression by service-connected disability, to include the service-connected tinnitus and/or hearing loss. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.