Citation Nr: 21040705 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-53 961 DATE: July 6, 2021 REMANDED Entitlement to service connection for a bilateral kidney disability is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1970 to August 1972 and from September 1990 to August 1991; he had additional service in the Reserves from August 1972 to November 1993. He died in August 2020, and the appellant is his surviving spouse. She has been substituted as the claimant for the purpose of processing his claims of service connection to completion. This case is before the Board of Veterans' Appeals (Board) on appeal of an August 2015 Department of Veterans Affairs (VA) rating decision. The Veteran had requested a videoconference hearing before a Veterans Law Judge at the RO; a hearing was scheduled for June 2020 but was canceled by the RO for re-scheduling at a later date. After the Veteran's death, in November 2020, the Board sent the appellant a letter, indicating that she could request a tele-hearing instead of waiting for an in-person Travel Board hearing. Upon further review, the appellant does not have a pending hearing request. It was the Veteran who had requested a Board hearing prior to his death. It is noted that he had testified at an August 2019 hearing before a Decision Review Officer (DRO) at the agency of original jurisdiction (AOJ), and the Board has considered the transcript of that hearing. 1. 2. Entitlement to service connection for a bilateral kidney disability and prostate cancer Private medical records show a diagnosis of prostate cancer (by biopsy) in December 2014. VA outpatient records show that the Veteran's renal function was normal until 2014, after which he had a diagnosis of chronic kidney disease. The Board cannot make a fully-informed decision on the issues because no VA examiner has opined whether the Veteran's bilateral kidney disability and prostate cancer were related to his active duty service. New theories of entitlement to service connection have been raised. In his December 2018 substantive appeal statement, the Veteran alleged that his disabilities were secondary to alcohol use that was a manifestation of his service-connected posttraumatic stress disorder (PTSD). In that regard, VA outpatient records show a diagnosis of alcohol use disorder, and a VA examiner in a January 2012 addendum report stated that it appeared the Veteran's alcohol abuse was related to his PTSD and represented an effort to cope with his PTSD symptoms. (VA treatment records do not show whether or not there is a link between his alcohol use and his kidney disease.) Furthermore, in a May 2021 statement, the appellant's representative argued that the Veteran's claimed disabilities were also due to his exposure to benzene to which he came into contact in the course of his duties as an infantryman. He cited to an internet medical article from American Cancer Society, which discusses methods of benzene exposure and the link between benzene exposure and cancer. 3. Entitlement to service connection for a left ankle disability The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether or not the Veteran's left ankle disability had onset during service. In hearing testimony, a lay statement in December 2018, and in VA outpatient records in August 2017, August 2018, and August 2019, the Veteran maintained that he has had ankle problems (decreased range of motion and pain) ever since a left ankle injury in 1989. On August 2017 and August 2018 VA social work assessments, he indicated that he sprained his ankle while serving in Germany and sustained another sprain at Fort Stewart, Georgia, and that he despite his ongoing problems he never filed for compensation benefits for the disability. Service records include a July 1998 Line of Duty determination showing that the Veteran sustained a twisted ankle. An August 2019 VA primary care note shows an assessment of left ankle pain with a suspicion of a chronic instability that led to possible impingement, tendon/ligament inflammation, and laxity; the provider opined that with the physical examination findings and the Veteran's reported history, it was "reasonable to assume that his pain is in fact from an old injury." Hence, the Board finds that VA's duty to assist requires further development, to include for a medical opinion addressing whether there is a nexus between the ankle injury in service and ankle condition noted during the pendency of this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following: 1. Arrange for an appropriate clinician(s) to review the record and provide an advisory medical opinion that responds to the following: (a). Is it at least as likely as not (a 50 percent or higher probability) that the Veteran's diagnosed bilateral kidney disability and prostate cancer were related to an injury, disease, or event during his active duty service from November 1970 to August 1972 or from September 1990 to August 1991, or during a period of Active Duty for Training (ACDUTRA), to include any potential exposure to benzene (see the May 2021 statement by the appellant's representative)? Please include comment on the benzene allegation claiming that the Veteran's disabilities were due to his exposure to benzene when he served as an infantryman and came into contact with the substance during the course of his duties (the representative cited to an internet medical article from American Cancer Society, which discusses methods of benzene exposure and the link between benzene exposure and cancer). (b). Is it at least as likely as not (a 50 percent or higher probability) that the Veteran's diagnosed bilateral kidney disability and prostate cancer were proximately due to or the result of, or aggravated by, an injury, disease, or event during his service, to include any alcohol use disorder attributable to service-connected PTSD? Please include comment on VA outpatient records reflecting a diagnosis of alcohol use disorder, and a VA examiner's opinion in a January 2012 addendum report that it appeared the Veteran's alcohol abuse was related to his PTSD and represented an effort to cope with his PTSD symptoms. The examiner should set forth reasons for the opinion with reference, as appropriate, to pertinent evidence. 2. Arrange for an appropriate clinician (in orthopedics) to review the record and provide an advisory medical opinion addressing whether it is at least as likely as not (a 50 percent or higher probability) that any left ankle disability of the Veteran was related to an injury, disease, or event during his active duty service from November 1970 to August 1972 or from September 1990 to August 1991, or during a period of ACDUTRA (or injury during inactive duty training). The opinion must include rationale with reference to pertinent evidence. The consulting provider is asked to address the July 1998 service Line of Duty determination (showing a twisted left ankle during ACDUTRA), August 2017, August 2018, and August 2019 VA outpatient records (noting the Veteran's reports of continuing left ankle problems after an injury in service and one provider's assessment that his ankle pain was from an old injury), and the Veteran's testimony and lay statements about a 1989 injury to his ankle. The provider should note that the absence of documentation of left ankle complaints during or after service cannot be the only basis for rejecting a possible nexus to service but that providing an [alternate] likely etiology (beyond any assertion that there was no documentation of the disability in or after service) may overcome this. If an opinion sought cannot be given without resort to mere speculation, (to satisfy legal requirements) the provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record (, or by the examiner lacking the necessary knowledge or training. If so, the examiner should identify the testing/specialist's opinion/other information needed to enable the opinion sought. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.