Citation Nr: 1309529 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 08-16 476A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for right knee disorder, to include as secondary to service-connected bilateral pes planus. 2. Entitlement to service connection for left knee disorder, to include as secondary to service-connected bilateral pes planus. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served from November 1964 to October 1971. Service in Vietnam is shown in the record. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, that, among other things, denied the Veteran's claims for service connection for bilateral knee disorders and hepatitis C. The Veteran disagreed and perfected an appeal. The Board remanded the claims for further development in an April 2012 decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board must remand the claim for further medical development. In the February 2013 formal brief in support of the Veteran's claims, the Veteran's representative made allegations that are pertinent to the the issues on appeal. First, the representative contended that the Veteran's bilateral knees were aggravated by the Veteran's service-connected pes planus disabilities. A disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for pes planus was established in a January 2013 rating decision; hence at the time of a June 2012 VA medical examination, any relationship between the Veteran's knee disorders and his pes planus was not under consideration. With this allegation, the Veteran raises a new theory to establish service connection for his bilateral knee disorders. Obtaining a medical opinion as to whether it is at least as likely as not that the Veteran's knee disorders were caused or aggravated by his service-connected pes planus disabilities would assist the Board in making the determination of whether service connection can be granted under that theory. The Veteran seeks service connection for hepatitis C. He was informed in a February 2008 notice of the risk factors that could have caused his exposure to hepatitis C and he was requested to identify any that may pertain to him. The notice specifically named tattoos as a risk factor. The Veteran originally contended that the sole relevant risk factor was that he was exposed to blood of dead soldiers. A June 2012 VA examiner opined that such exposure was not as likely as not the cause of the Veteran's hepatitis C and the Veteran's claim was denied in the November 2012 supplemental statement of the case. In the February formal brief, the Veteran's representative contends that the Veteran received a tattoo during service and that, therefore, the June 2012 examiner did not consider all the relevant facts when making the negative etiological opinion. The Board observes that the Veteran's contention was made about five years after he received notice that a tattoo may be relevant; however, the Board has no other reason to find the contention incredible. Accordingly, the June 2012 examiner should reconsider the likelihood that the Veteran's hepatitis C was incurred during service through exposure to blood from moving the bodies of soldiers and receipt of a tattoo during service. The Board will further direct that the Veteran be once again encouraged to state whether any other hepatitis C risk factors may pertain to him and to provide a statement regarding how he was exposed to the risk factors. He should also be informed of the evidence required to substantiate a claim for secondary service connection. 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran in writing and inform him of the hepatitis C risk factors identified by the medical community and request that he identify and describe any and all such risk factors he believes are relevant in his claim. He should also be requested to provide a statement regarding why he believes any risk factor is relevant; i.e., how he encountered the risk factor during service. The Veteran should also be informed of the evidence necessary to substantiate a claim for secondary service connection. 2. Following completion of the foregoing, provide the Veteran's VA claims folder to the June 2012 VA medical provider who authored the June 2012 examination report regarding the Veteran's bilateral knee disorders. The examiner should review the claims folder and provide an opinion whether it is at least as likely as not that the Veteran's right knee disorder and/or left knee disorder was either (a) proximately caused by or (b) proximately aggravated by the Veteran's service-connected pes planus disabilities. The examiner's opinion should be supported by reference to clinical evidence, clearly stated rationale and, if appropriate, reference to medical literature. If the examiner determines that examination of the Veteran is required in order to provide the requested opinion, such an examination should be afforded. 3. Provide the Veteran's VA claims folder to the June 2012 examiner who authored the June 2012 examination report regarding the Veteran's hepatitis C. The examiner should review the claims folder and provide an opinion whether it is at least as likely as not that the claimed risk factors of exposure the Veteran describes, to include, but not limited to, moving dead soldiers and being exposed to their blood and receiving a tattoo during service, are at least as likely as not the cause of his current hepatitis C disorder. The examiner should provide a rationale for any opinion provided and should report any relevant medical literature or other data that supports the opinion. 4. Following completion of the foregoing and completion of any other development deemed necessary, readjudicate the Veteran's claims for service connection. If any of the benefits sought on appeal remain denied, issue a supplemental statement of the case and return the Veteran's VA claims folder to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).