Citation Nr: 1306474 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-40 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia. 4. Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from January 1977 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was remanded by the Board in February 2012 for additional development. The appeal as to the issues of entitlement to service connection for a back disorder, increased rating for the left knee disorder, and a total rating for compensation purposes based upon individual unemployability (TDIU) are remanded to the RO via the Appeals Management Center, in Washington, DC. FINDING OF FACT Hepatitis C is related to the tattoo the Veteran received during active military service. CONCLUSION OF LAW Hepatitis C was incurred in service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the Veteran's claim for entitlement to service connection for hepatitis C. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting entitlement to service connection for hepatitis C. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that service connection is warranted for hepatitis C. He claims that this disorder is the result of air gun inoculations, or the result of tattoos that he received during his active duty military service. The service medical records show no diagnosis or treatment in service for hepatitis C. A review of his service treatment records, including his separation examination, dated in May 1978, was silent as to any notations regarding the Veteran having any tattoos. Hepatitis C was diagnosed in 2003. The Veteran testified at an August 2011 Board hearing that he received all of his tattoos while he was stationed in Panama. He related that they were on his upper arms so he could "hide it with a t-shirt." A copy of a picture of the Veteran shows at least two tattoos on one of his upper arms. In February 2012, a VA examination of the liver was conducted. The examiner noted the Veteran's inservice history of air gun inoculations and tattoos while stationed in Panama. In particular, the examiner noted a tattoo of an eagle on the Veteran's chest which the Veteran reported that he received during his active service. The Veteran denied any blood transfusions or IV drug use. Following appropriate laboratory testing, the report concluded with a diagnosis of hepatitis C. The VA examiner opined that the etiology of the Veteran's hepatitis C was "less than likely related to any air gun vaccination" and "more likely than not related" to the risk of receiving a tattoo during service in Panama. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for hepatitis C is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this conclusion, the statements of the Veteran that he received all of his tattoos during his period of active service is competent evidence. These statements have been consistent and the Board has no reason to doubt the veracity of his statements. Moreover, the sole medical opinion of record relates the Veteran's hepatitis C to the tattoos that he received during his active service. Thus, service connection for hepatitis C is warranted. ORDER Service connection for hepatitis C is granted. REMAND The Veteran is seeking entitlement to service connection for a low back disorder, an increased rating for service-connected left knee chondromalacia, and entitlement to TDIU. I. Low Back Pursuant to his claim of entitlement to service connection for a low back disorder, the Veteran was afforded a VA examination in March 2011. The VA examiner opined that the Veteran's musculoskeletal low back pain "less likely than not permanently aggravated or a result of any event and/or condition that occurred in service, including the 1978 lumbar strain." The examiner further determined that it was "at least as likely as not that the back condition is a result of a 2005 motor cycle accident and/or other postservice incidents and/or risk of back pain in the general population." The examiner then stated that "degenerative disc disease is a normal part of aging, not a result of trauma." Initially, the Board finds that examiner did not provide a rationale for concluding that the Veteran' s current low back disorder is not related to service but to postservice traumatic incidents and/or normal part of aging. Moreover, the Board finds that the examiner's statements attributing the low back disorder to postservice traumatic incidents but ultimately concluding that degenerative disc disease is a normal part of aging and not due to trauma, to be internally inconsistent. Also, the examiner did not address the Veteran's contentions of experiencing low back pain while he carried radio and other gear during active service. The Veteran testified at the August 2011 Board hearing that he believed his current back disorder was due to his inservice duties of carrying heavy packs on the back. He testified that he continued to experience chronic back pain ever since military service but he rarely sought medical care for his back as he did not have health insurance. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay person is competent to testify to that which he or she has actually observed and is within the realm of his or her personal knowledge). As noted above, the Veteran's service treatment records show a single complaint of back pain in an April 1978. Based on the above, the Board finds that the March 2011 examination in inadequate for adjudication purposes. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the Veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, in order to satisfy VA's duty to assist, the Board finds that a remand is warranted in order to afford the Veteran an additional VA examination. 38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R. § 3.159. II. Left Knee The Veteran was originally granted service connection for left knee chondromalacia in a rating decision dated October 1978. The RO assigned an initial noncompensable evaluation to the service-connected left knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective June 1, 1978. The Veteran sought an increased rating for his service-connected left knee disability in October 2008. The RO continued the noncompensable evaluation in rating decisions dated in January and June 2009. The Veteran was notified of the decision and provided his appellate rights. He perfected this appeal. In October 2009, the RO found clear and unmistakable error in the January and June 2009 rating decisions and granted a 10 percent evaluation for left knee chondromalacia, effective October 10, 2008. Subsequently, in a November 2012 rating decision, the RO granted service connection for arthritis of the left knee, and assigned a separate 10 percent evaluation, effective February 27, 2012. 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5261; see also VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997) (arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability). The Veteran has not disagreed with this decision, and therefore, this issue is not before the Board. The February 2012 Board remand ordered that the Veteran must be afforded a current VA examination of his left knee and instructed the VA examiner to specifically "address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe." Review of the February 2012 VA examination report reflects that while the VA examiner noted that the Veteran had instability of the left knee, the examiner did not comment as to whether the instability was slight, moderate or severe. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Therefore, the Board finds that another VA examination is necessary for the purpose of ascertaining the severity of the left knee instability. III. TDIU The Board's grant of service connection for the Veteran's hepatitis C impacts his claim for TDIU. Also, decisions on the other claims being developed herein could also could change the outcome of the Veteran's claim for TDIU. Consequently, the claim for TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Finally, despite the fact that the Board remanded the claim for entitlement to TDIU in February 2012, the subsequently issued December 2012 supplemental statement of the case does not include the issue of entitlement to TDIU. As such, the Board finds that a remand is also required in order for the RO to issue a supplemental statement of the case addressing this issue once the additional development has been completed. See Stegall, 11 Vet. App. at 271. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include VA and non-VA medical records. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 2. The Veteran must be afforded a VA examination to determine whether the currently diagnosed low back disorder is related to his active duty service. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All necessary and appropriate tests must be performed and their results documented. The examiner must fully describe all manifestations of any back disorder found, to include any orthopedic and neurological findings. Following a review of the entire evidence of record and clinical examination, the examiner must state whether the Veteran's current low back disorder is related to his active duty service. In providing this opinion, the examiner must address all the evidence of record, to include the April 1978 service treatment record documenting back pain, as well as the Veteran's lay statements. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must be afforded a VA joints examination to determine the nature and severity of his service-connected left knee chondromalacia. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated testing must be conducted. The examiner must indicate whether the left knee chondromalacia is manifested by recurrent subluxation or lateral instability and if so, whether these symptoms are slight, moderate, or severe. The report must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include a denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claims on appeal. Upon the adjudication of TDIU, if the RO finds that the Veteran does not meet the rating criteria under 38 C.F.R. § 4.16(a) (2012), but his service-connected disabilities prevent him from following a substantially gainful occupation, the RO must refer the appeal to the Chief Benefits Director or the Director, Compensation and Pension Service, for extraschedular consideration. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs