Citation Nr: 23065166 Decision Date: 12/07/23 Archive Date: 12/07/23 DOCKET NO. 18-25 491 DATE: December 7, 2023 REMANDED Entitlement to service connection for arthritis, to include the left hip, left knee and left foot is remanded. Entitlement to service connection for a colon disability, to include colon resection, colon cancer and benign neoplasm of the colon is remanded. Entitlement to service connection for a prostate disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to February 1973. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during February 2020 and September 2023 hearings. The transcripts of the hearings are of record. The Board remanded the issues on appeal for further development in June 2020, October 2021, and June 2022. The Board also denied entitlement to service connection for a bilateral sinus disability, hypertension, a respiratory disability, and bilateral eye disability in the June 2022 decision. 1. Entitlement to service connection for arthritis, to include the left hip, left knee and left foot Pursuant to the June 2022 Board remand directives, the RO obtained a new VA etiology opinion in July 2022. The examiner opined that the Veteran's left hip, knee, and foot arthritis was less likely than not related to his service, to include in-service asbestos exposure. In support of the opinion, the examiner found that the Veteran's in-service left lower extremity injury had resolved completely prior to the left hip arthritis injury, but she provided no rationale to support this finding. In addition, the examiner noted that she had considered the lay statements of record and conceded that repetitive heavy lifting may in some cases contribute to degenerative arthritis, but she found that the long period without any reported symptoms ruled out a nexus to service. It therefore appears that the examiner dismissed the competent lay evidence regarding the onset and persistence of the Veteran's symptoms merely because they were unaccompanied by contemporaneous medical evidence. As the July 2022 opinion lacked supporting rationale and improperly dismissed the Veteran's competent lay statements, it is inadequate, and remand is necessary to obtain a new etiology opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board notes that, during the September 2023 hearing, the Veteran raised a new theory of entitlement, namely that his service in the cold weather of Alaska and falls on ice during that time are related to his later development of left lower extremity arthritis. On remand, the examiner should therefore also address whether service connection is warranted on this basis. 2. Entitlement to service connection for a colon disability, to include colon resection, colon cancer and benign neoplasm of the colon Pursuant to the June 2022 Board remand directives, the RO obtained a new VA etiology opinion in July 2022. The examiner found that, while benign neoplasms had been identified during service, these were more likely than not related to his genetic susceptibility, rather than his service or in-service asbestos exposure. In support of this finding, the examiner cited to medical literature regarding the relationship between asbestos and colorectal cancer. However, as noted above, the examiner did not find that the Veteran had been diagnosed with colorectal cancer during the period on appeal. It is therefore unclear how the cited medical literature supports the examiner's finding that his benign neoplasms of the colon are not related to the Veteran's service. As the July 2022 opinion does not provide clear conclusions and rationale, it is inadequate and remand for a new opinion is required. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the Board notes that, on August 10, 2022, the President of the United States signed into law the Honoring our PACT Act of 2022 (PACT Act). A notable element of the PACT Act is that it established a statutory duty on the part of VA to provide a disability examination and/or obtain a medical opinion when a toxic exposed veteran submits a claim for compensation when the evidence is not otherwise sufficient to establish service connection for the claimed disability. 38 U.S.C. § 1168(a). Toxic exposed veterans include those who participated in a toxic exposure risk activity (TERA) during service. 38 U.S.C. § 101(38); 38 U.S.C. § 1710(e)(1). The Veteran's asbestos exposure during service is conceded and he therefore qualifies as TERA Veteran. The PACT Act requires in such cases that a specific medical opinion, considering the Veteran's total potential exposure through all applicable military deployments, as well as the synergistic combined effect of all the Veteran's in-service toxic exposure risk activities, must be obtained if service connection cannot otherwise be established. Id. The July 2022 opinion does not address any exposure apart from asbestos and does not clearly note that the Veteran's total exposure was considered. Accordingly, remand is also necessary to obtain a TERA opinion that complies with regulatory requirements. 3. Entitlement to service connection for a prostate disability Pursuant to the June 2022 Board remand directives, the RO obtained a new VA etiology opinion in July 2022. The examiner found that the Veteran's benign prostatic hyperplasia (BPH) is less likely than not related to his service, to include his in-service asbestos exposure. In the rationale, the examiner referenced medical literature explaining the diagnosis of BPH but did not otherwise discuss the specifics of the Veteran's case or how the medical literature supported her finding. In a September 2022 addendum, the examiner opined that there is no evidence that military service causes BPH and cited medical literature discussing occupational exposures. The examiner concluded that the medical results did not provide evidence that any of the occupational factors examined were risk factors for the development of BPH. However, it is not clear whether asbestos is among the occupational factors examined in the cited medical literature. It is also not clear that the examiner considered the synergistic, combined effect of all the Veteran's toxic exposure, in compliance with the PACT Act. Accordingly, remand is also necessary to obtain a TERA opinion that complies with regulatory requirements. The Board also notes that, during the September 2023 hearing, the Veteran raised a new theory of entitlement, arguing that his prostate condition may be related to his colon condition. On remand, the examiner should therefore also discuss whether the Veteran's prostate disability was caused or aggravated by his colon disability. The matters are REMANDED for the following action: 1. Obtain a VA opinion, from an appropriate clinician who has yet to provide an opinion on this matter, to determine the etiology of the Veteran's left hip, knee, and foot disabilities. The provider should review the file and provide a complete rationale for all opinions expressed. The opinion should address the following questions: (a.) Whether it is at least as likely as not (likelihood is at least in approximate balance or nearly equal in the Veteran's favor, if not higher) that the Veteran's diagnosed left hip, knee and foot arthritis is related to his active service, to include his duties in cold weather, as well as working in tight spaces and performing heavy lifting in a construction battalion. The opinion should address September 1971 service treatment records noting a left lower extremity injury. (b.) If the examiner determines that the Veteran's left hip, knee, and foot arthritis is not related to his active service, whether it is at least as likely as not (likelihood is at least in approximate balance or nearly equal in the Veteran's favor, if not higher) that they are related to his toxic exposure during service, to include his conceded asbestos exposure. The examiner must consider the Veteran's total potential exposure through all applicable military deployments, as well as the synergistic combined effect of all toxic exposure risk activities. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 2. Obtain a VA opinion, from an appropriate clinician who has yet to provide an opinion on this matter, to determine the etiology of any current colon disability, including a history of benign neoplasms and colon resection. The provider should review the file and provide a complete rationale for all opinions expressed. For any current colon disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least in approximate balance or nearly equal in the Veteran's favor, if not higher) that any such disability is related to the Veteran's toxic exposure during service, to include his conceded asbestos exposure. The examiner must consider the Veteran's total potential exposure through all applicable military deployments, as well as the synergistic combined effect of all toxic exposure risk activities. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. Obtain a VA opinion, from an appropriate clinician who has yet to provide an opinion on this matter, to determine the etiology of the Veteran's benign prostatic hyperplasia (BPH). The provider should review the file and provide a complete rationale for all opinions expressed. The opinion should address the following questions: (a.) Whether it is at least as likely as not (likelihood is at least in approximate balance or nearly equal in the Veteran's favor, if not higher) that any such disability is related to the Veteran's toxic exposure during service, to include his conceded asbestos exposure. The examiner must consider the Veteran's total potential exposure through all applicable military deployments, as well as the synergistic combined effect of all toxic exposure risk activities. (b.) Whether it is at least as likely as not (likelihood is at least in approximate balance or nearly equal in the Veteran's favor, if not higher) that the Veteran's BPH was caused or aggravated by his colon disability. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.