Citation Nr: 24034331 Decision Date: 12/16/24 Archive Date: 12/16/24 DOCKET NO. 10-33 051 DATE: December 16, 2024 ORDER Entitlement to service connection for a disability claimed as hair loss is granted. Entitlement to service connection for a disability claimed as loss of balance of the right lower extremity is granted. Entitlement to service connection for a disability claimed as loss of balance of the left lower extremity is granted. Entitlement to service connection for a disability claimed as blood clots of the legs is granted. Entitlement to service connection for an upper right extremity nerve disorder is granted. Entitlement to service connection for an upper left extremity nerve disorder is granted. Entitlement to service connection for a disability claimed as loss of ability to focus is granted. FINDINGS OF FACT 1. The Veteran's hair loss is at least as likely as not proximately due to his service-connected cancer and/or the treatment thereof. 2. The Veteran's right lower extremity loss of balance is at least as likely as not proximately due to his service-connected cancer and/or the treatment thereof. 3. The Veteran's left lower extremity loss of balance is at least as likely as not proximately due to his service-connected cancer and/or the treatment thereof. 4. The Veteran's blood clots of the legs are at least as likely as not proximately due to his service-connected cancer and/or the treatment thereof. 5. The Veteran's upper right extremity nerve disorder is at least as likely as not proximately due to his service-connected cancer and/or the treatment thereof. 6. The Veteran's upper left extremity nerve disorder is at least as likely as not proximately due to his service-connected cancer and/or the treatment thereof. 7. The Veteran's concentration and focus difficulties are at least as likely as not proximately due to his service-connected cancer and/or the treatment thereof. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hair loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.309, 3.310. 2. The criteria for entitlement to service connection for right lower extremity loss of balance have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.309, 3.310 3. The criteria for entitlement to service connection for left lower extremity loss of balance have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.309, 3.310. 4. The criteria for entitlement to service connection for blood clots of the legs have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.309, 3.310. 5. The criteria for entitlement to service connection for a right upper extremity nerve disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.309, 3.310. 6. The criteria for entitlement to service connection for a left upper extremity nerve disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.309, 3.310 7. The criteria for entitlement to service connection for concentration and focus difficulties have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.309, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from October 1966 to October 1970. This appeal comes before the Board of Veterans' Appeals (Board) on appeal of January and November 2009 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran died in March 2009, and his surviving spouse has been substituted as appellant. The appellant testified at an April 2014 hearing before a Veterans Law Judge that is no longer employed at the Board. In November 2023, she was offered an additional hearing before a current Veterans Law Judge. However, through her representative, she waived her right to another hearing in November 2023 written correspondence. After merger of service connection and DIC appeals just prior to the April 2014 hearing, the case was remanded to the AOJ for additional development in July 2014 and June 2015. The Board then denied the claim in April 2018, a decision the appellant appealed to the Court of Appeals for Veterans Claims (Court). In an April 2020 memorandum decision, the Court found that remand was warranted to obtain an additional medical opinion. The Board remanded the claims to the AOJ for further development, to include obtaining an oncologist opinion, in October 2020 before denying the claim in March 2022. The appellant again appealed this decision to the Court, which in November 2022 approved a Joint Motion for Remand (JMR) agreed to by the parties and returning the case to the Board. The terms of the JMR stipulated that the February 2021 oncologist opinion, relied upon by the Board in the March 2022 denial, was inadequate. Specifically, the JMR stated that the oncologist adopted the same rationale as the opinion of an October 2014 VA examiner, which the Court had previously deemed inadequate, and based the 2021 opinion solely on the lack of evidence of toxins at Griffiss AFB while failing to address several medical articles as instructed. After reconsidering the evidence of record and resolving all reasonable doubt in favor of the Veteran and appellant, the Board issued a January 2024 decision granting entitlement to service connection for lung cancer that had metastasized to the brain, as well as service connection for the Veteran's cause of death and DIC benefits. 1. Entitlement to service connection for a disability claimed as hair loss 2. Entitlement to service connection for a disability claimed as loss of balance of the right lower extremity 3. Entitlement to service connection for a disability claimed as loss of balance of the left lower extremity 4. Entitlement to service connection for a disability claimed as blood clots of the legs 5. Entitlement to service connection for an upper right extremity nerve disorder 6. Entitlement to service connection for an upper left extremity nerve disorder 7. Entitlement to service connection for a disability claimed as loss of ability to focus As it appeared from the record that the current claims were all for symptoms associated with the Veteran's cancer and treatment thereof, the January 2024 Board decision also remanded the above issues in order to give the appellant and her representative an opportunity to clarify the nature of any additional benefit sought, if any. If further benefit was still sought, the AOJ was to conduct any further development deemed necessary and adjudicate these issues in the first instance since the grant of service connection for cancer and DIC. Unfortunately, the appellant's representative withdrew after the Board grant without providing the requested clarification regarding the remaining claims. The AOJ then issued a June 2024 Supplemental Statement of the Case summarily denying each claim because the evidence of record did not show the claimed disability "was related to military service." Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. However, service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Therefore, any symptoms that are proximate to the Veteran's service-connected brain and lung cancer, to include the treatment thereof, may also be granted service-connection. According to records received in January 2023, the Veteran was initially hospitalized for altered mental status and slurred speech, wherein a CT scan revealed cancer of the lung that had metastasized to the brain. He underwent chemotherapy from January 2008 to April 2008, and December 2008 imaging revealed end stage lung disease and emphysema. He died in March 2009. December 2008 private treatment records indicate that the Veteran needed total care with the activities of daily living, was bedridden and manifested aphasia and cognitive impairment. In July 2010 correspondence, the Veteran's physician stated that he developed pressure ulcers and gangrene as a result of his incurable lung cancer. Finally, in his initial July 2008 claim, the Veteran stated, "the chemo has changed the way I live, and my limbs are swollen." The Board observes that the Canadian Cancer Society lists hair loss as well as memory, attention and other cognitive problems as side effects to chemotherapy treatment. https://cancer.ca/en/treatments/treatment-types/chemotherapy/side-effects-of-chemotherapy. Similarly, the U.S. Centers for Disease Control states that patients with certain types of cancer and cancer treatments, to include brain cancer and chemotherapy, are at increased risk for developing blood clots. https://www.cdc.gov/blood-clots/risk-factors/cancer.html. Finally, the American Cancer Society lists muscle weakness, altered gait, peripheral neuropathy, and poor balance and coordination as side effects of cancer and/or cancer treatment. https://www.cancer.org/cancer/managing-cancer/side-effects/fatigue-weakness-sleep/weakness-balance-falls.html. The Board notes that the above-claimed conditions are all known side effects of the Veteran's specific type of cancer and treatment. Therefore, after resolving all reasonable doubt in favor of the appellant, the Board will avoid yet another remand in an already lengthy appeal and find that the Veteran's claimed symptoms are proximate to the service-connected lung cancer that metastasized to his brain. The claims of entitlement to service connection for hair loss, bilateral lower extremity balance issues, blood clots in the legs, loss of focus and concentration, and bilateral upper extremity nerve disorders are granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Schumacher, Kyle C. 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.