Citation Nr: 1303104 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 12-05 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active service from November 1975, to September 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the Veteran's claim for service connection. In July 2012, a hearing was held before the undersigned Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002). A transcript of these proceedings has been associated with the claims file. A review of the Virtual VA paperless claims processing system revealed VA treatment records dated from May 2008, to January 2012. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain new VA examinations in order to determine the etiology of the Veteran's right knee disorder and hepatitis C. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). Right knee disorder The Veteran claims that in July 1976, he was forcefully pulled out of his bunk by his squad leader and slammed his right knee into the ground. He has further stated that this injury has caused him pain and discomfort since that incident in the military. A review of the Veteran's service treatment records (STRs) shows that he was treated for this incident in June 1976 and last treated for it in July 1976. The Veteran was diagnosed with a right knee sprain. The Veteran's August 1976 separation examination was negative for any discussion of a right knee disorder. The Veteran's VA Medical Center records were reviewed and showed that he first sought treatment for this condition in May 2008. The Veteran complained of pain with motion. He was then diagnosed in May 2010 with right patella degenerative joint disease and right lateral meniscus tear. In the May 2010 treatment note, the physician stated that the fall in the military directly on the patella was most likely what precipitated in arthritis, especially in the patella. The Veteran was provided with a VA examination on December 2008, with an addendum opinion issued on January 2009. At the examination, the examiner reviewed the claims file and noted the Veteran's history of falling on his knee in the military. The Veteran reported symptoms of pain and flare-ups that were moderate and occurred daily for about 24 hours per day. The Veteran reported no loss of work or functional impairment related to his knee. No ankylosis, subluxation, or instability was noted. Range of motion testing revealed a flexion of 150 degrees and extension of 0 degrees. No objective evidence of pain was noted. No additional pain or loss of motion was noted after 3 repetitions. The examiner diagnosed right knee mild bilateral medial compartment narrowing with weight-bearing. In the January 2009 addendum opinion, the examiner opined that the Veteran's current diagnosed right knee mild bilateral medial compartment narrowing with weight-bearing was not caused by or a result of the prior right knee sprain diagnosed in the military. In support, the examiner provided that medial compartment narrowing has no relationship to prior sprains, as shown in medical literature. Although the December 2009 VA examination was adequate, the opinion must be reconciled in light of the additional assessment from the May 2010 VA treatment note. The physician in the May 2010 treatment note stated that he discussed a positive relationship between the Veteran's fall in the military and his current degenerative joint disease. However, no further explanation was provided as to why this opinion was provided or upon what information the assessment was based. Further, it does not appear that the two diagnoses found in the May 2010 treatment note were known at the time of the December 2009 VA examination. As such, a new VA examination is necessary to reconcile the variance in these diagnoses and opinions, as well as to take account of the current severity of the Veteran's disability. Hepatitis C The Veteran claims that he contracted hepatitis C due to exposure to infected vaccination air guns used during his enlistment into the military. At his July 2012 Board hearing, the Veteran stated that he and other recruits were place in a line and administered the injections one after the other. The Veteran additionally stated that the air guns were not wiped or sanitized between uses and that another service-member had blood emanating from the injection site. Although the Veteran initially claimed on his August 2008 Hepatitis C Risk Factors sheet that he only engaged in the risk factor of tattooing, at his July 2012 Board hearing, he also indicated that he had dental work performed, was exposed to cuts and scrapes during service, as well as getting tattoos while in service. The Veteran claimed that he was diagnosed with hepatitis C in 2001 or 2002, but that records relating to such diagnosis were not available. A review of the Veteran's STRs revealed no complaints or treatment for hepatitis C. His separation physical examination noted that he had tattoos, while his enlistment examination did not, thus corroborating the Veteran's statement of engaging in tattooing during service. A review of the Veteran's VA Medical Center treatment records shows that the earliest available record of his diagnosis of hepatitis C occurred in May 2008. A June 2008 medical counseling note referenced the Veteran's use of intravenous drugs in the 1970s and a blood transfusion due to a motor vehicle accident in 1987, as well as the procurement of a recent tattoo. The Veteran was administered a VA examination in December 2008. At this examination, the examiner noted the Veteran's May 2008 diagnosis of hepatitis C. No significant effects were noted as associated with this diagnosis. The Veteran reported getting a tattoo prior to his diagnosis. The examiner opined that it was more likely than not that the recent tattoo was the cause of the hepatitis C. The Veteran has submitted multiple articles and fact sheets relating to hepatitis C, its relationship to air gun vaccinations, and the possible negative correlation between the disease and tattooing. These articles were not reviewed by the VA examiner in the December 2008 VA examination. Although the December 2008 VA examination was adequate, the opinion must be reconciled in light of the additional risk factors noted by the Veteran, both during and after service, as well as the submitted medical literature. Further, the VA examiner must take into account the Veteran's statements of exposure and possible contamination when he endured the air gun vaccination regimen during his enlistment. As such, a new VA examination is necessary to reconcile the opinion in light of these additional findings and further discuss the Veteran's allegations in relation to his current diagnosis. As this case must be remanded for the foregoing reasons, any recent VA treatment records should also be obtained. The Board observes that the Veteran has received VA treatment for both his right knee disorder and hepatitis C and records of his VA care, dated since January 2012, have not been associated with the claims file. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate in- person examination to determine the etiology and severity of the Veteran's right knee disorder. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee condition was related to military service. The Veteran's lay statements regarding onset and continuity of symptoms of pain must also be taken into consideration. Particularly, the examiner must discuss the May 2010 VA treatment note and its opinion of a relationship between the Veteran's currently diagnosed disorders and his injury in the military. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 3. The Veteran should also be scheduled with an appropriate in- person examination to determine the etiology and severity of the Veteran's hepatitis C. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner is requested to provide an opinion, in light of the evidence in the claims file, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C was related to military service. The Veteran's lay statements regarding vaccination procedures in the military must also be taken into consideration. In particular, the examiner is asked to take into account all of the Veteran's stated risk factors, to include intravenous drug use in the 1970s, vaccination by air guns in service, tattoos in service, dental work in service, exposure to cuts and scrapes in the service, the 1987 motor vehicle accident and blood transfusion, and tattoos after service. Further, the examiner is asked to review the medical literature submitted by the Veteran regarding hepatitis C, its relationship to air gun vaccinations, and the possible negative correlation between the disease and tattooing. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any 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. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim 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. 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). _________________________________________________ WAYNE M. BRAEUER 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).