Citation Nr: 22015666 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 19-13 219 DATE: March 18, 2022 REMANDED Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1972 to June 1976. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board, in pertinent part, remanded the claim for service connection for a left knee disability and denied the claim for service connection for prostate cancer. The Veteran appealed the portion of the January 2020 Board decision denying service connection for prostate cancer to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court issued an Order that vacated the portion of the January 2020 decision denying service connection for prostate cancer and remanded the matter for readjudication consistent with instructions outlined by the parties in a Joint Motion for Partial Remand (JMPR). Thereafter, in June 2021, the Board remanded the service connection claims for a left knee disability and prostate cancer for further development. Unfortunately, as discussed below, the Board is not satisfied that there has been substantial compliance with the most recent remand instructions; therefore, the matters must be remanded once again. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability, is remanded. In October 2021, pursuant to the Board's June 2021 remand directives, an addendum opinion was obtained in which the examiner opined that the Veteran's left knee disability was not caused or aggravated by his service-connected right knee torn medial meniscus status-post removal of semi-lunar cartilage with degenerative arthritis. The examiner reasoned that any musculoskeletal condition causing a Trendelenburg gait would also have an impact on an unaffected joint and that a review of Veteran's medical records did not reveal this gait. However, a December 2019 VA physical therapy consult notes that the Veteran has ambulation with Trendelenburg. Thus, this opinion is inadequate as it is based upon an inaccurate factual premise that the Veteran did not have a Trendelenburg gait. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value). In light of the above, the Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directives to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 271. On remand, the RO must obtain an addendum medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 2. Entitlement to service connection for prostate cancer is remanded. In the December 2020 JMPR, the parties agreed that the Board shall provide an adequate statement of reasons or bases that considers the Veteran's lay statements and materials that suggest the possibility of exposure to drinking-water toxins, and that the Board must make a finding on the Veteran's allegation that he was exposed to jet fuel, consistent with Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1999). Post-service medical treatment records show the Veteran has a past medical history of cancer from January 2015. The Veteran claimed he has prostate cancer from airplane fuels and chemicals in his December 2017 application for benefits. In support of his claim, the Veteran has submitted: articles which reference Marine Corps Air Station (MCAS) Yuma as a Superfund site due to fuels and solvents contaminating groundwater; information on Andrews Air Force Base (AFB) with past activities that contaminated soil, sediment, surface water, and groundwater with petroleum and hazardous chemicals; and material pertaining to Hensley Field near Dallas as a training field for reserve pilots. The Veteran's service treatment records show he was at Andrews AFB and in Dallas during his active duty. The Veteran's DD-214 shows he served as an aircraft power plants mechanic and worked as a plane captain at the MCAS in El Toro, California. In the June 2021 Board remand, the VA examiner was instructed to provide an addendum opinion addressing whether it is at least as likely as not that the Veteran has had prostate cancer that had its onset during military service or is otherwise related to service, to include an due to assumed exposure to hazardous chemicals and harmful exposures such as jet fuel therein. In an October 2021 VA medical opinion, the examiner opined that it was less likely than not that the Veteran's prostate cancer was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran developed cancer 40 years after service and that he had higher risk factors due to his age and family history. The examiner also concluded that it was unlikely that exposure to chemicals and fuel almost 40 years ago can cause prostate cancer. The Board notes that the opinion by the October 2021 examiner that it was unlikely that exposure to chemicals and fuel almost 40 years ago can cause prostate cancer is conclusory. The examiner did not provide any explanation as to why exposure 40 years ago would not contribute to the Veteran developing prostate cancer later in life. Conversely, the article submitted by the Veteran discusses a case study where a VA physician provided an opinion that a veteran's exposure during service from 1968 to 1971 was sufficient to cause his cancer later in life. See May 2018 Medical Treatment Record - Non-Government Facility. For the foregoing reasons, the Board finds the October 2021 medical opinion inadequate for determining medical nexus. As such, remand is required to afford the Veteran an adequate VA opinion. See Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 311. Accordingly, the matters are REMANDED for the following action: Obtain an addendum opinion from a VA physician(s) of appropriate expertise discussing the nature and etiology of the Veteran's left knee disability and prostate cancer. In-person examinations should not be scheduled unless it is deemed necessary by the examiner(s) or otherwise required by the evidence. The examiner(s) must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. Thereafter, the respective VA examiner must provide a fully-articulated medical opinion addressing the following: Left Knee Disability (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is caused by his service-connected right knee disability, to include any resulting altered gait? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is aggravated by (increased in severity beyond its natural progression) his service-connected right knee disability, to include any resulting altered gait? If aggravation is found, the examiner should identify the baseline level of severity prior to the onset of aggravation, if possible. Separate opinions must be provided for question (a) addressing causation, and question (b) addressing aggravation. In addressing the matter of aggravation, the examiner should note that it is not required that the claimed disability is shown to be aggravated beyond natural progression "predominantly" by the service-connected disability, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected disability. Additionally, a finding of aggravation does not require that there be "permanent" worsening of the nonservice-connected disability any increase in disability is sufficient. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. Prostate Cancer (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer was incurred in or caused by an in-service injury, illness, or event, to include an assumed exposure to hazardous chemicals and harmful exposures, such as jet fuel, U-235, dioxin, and TCE, therein? With regard to in-service exposures, the examiner must consider whether such a relationship exists between prostate cancer and the toxins that may have been present in the drinking water during active duty. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. Melissa Barbee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.