Citation Nr: 18152165 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 14-35 013A DATE: November 21, 2018 REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral pes planus. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for Hepatitis C, to include as secondary to exposure to contaminated water at Camp Lejeune, to include as secondary to service-connected posttraumatic stress disorder (PTSD). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral leg disability. REASONS FOR REMAND The Veteran served on active duty from May 1971 to April 1975. In January 2016, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board’s Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. In May 2016, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. As to each of the claims remanded herein, additional development is required in order to comply with the Board’s May 2016 Remand directives. Specifically, the Board discussed that in a March 1996 Formal Finding, the Department of Veterans Affairs (VA) Regional Office (RO) determined that some of the Veteran’s service treatment records were unavailable; and the Veteran was notified of the same in a March 1996 letter. The Veteran, in October 2012, telephoned the RO and informed them that there had been a mistake in recording his service number and such may be the reason for any unavailable service treatment records. Indeed, his service personnel records dated in July 1971 indicate that his service number had been confused with that of another service member. The Board directed the RO to attempt to locate any service treatment records that may be have been stored under the service number of the named service member in the July 1971 document as well as the service number provided by the Veteran in October 2012. Resultant to the Board’s Remand, it appears that in August 2016, the RO requested the Veteran’s service records, using his social security number as an identifier, from the National Archives and Records Administration (NARA). In an August 2016 response, the National Personnel Records Center (NPRC) reported that all available service records had been forwarded for scanning to be entered into the Veteran’s claims file. It does not appear that the RO conducted any development to locate any outstanding service records considering the Veteran’s change of service number, as evidenced by the July 1971 document. The Board, considering the Veteran’s assertions that any unavailable service treatment records are unavailable on the basis that his service number was confused with that of another service member, must ascertain if there are indeed outstanding service records before adjudicating the issues of whether new and material evidence has been received to reopen claims of entitlement to service connection for the disabilities on appeal. On remand, the RO should attempt to locate any service treatment records that may be have been stored under the service number of the named service member in the July 1971 document as well as the service number provided by the Veteran in October 2012. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. As discussed in the May 2016 Remand, the Veteran’s service treatment records are silent for complaint, treatment, or diagnosis of a left knee disability. In a February 1975 Report of Medical History, the Veteran reported a history of “trick” or locked knee and the examiner made a notation of “knee trouble, existed prior to entry (EPTE).” During VA treatment, post-service, in March 1979, he presented with left knee effusion from playing basketball, and denied left knee trauma. During VA treatment in January 1993, the Veteran reported a motor vehicle accident, one day prior, with bilateral knee pain. During VA treatment in September 2000, the Veteran reported bilateral knee pain since 1972 with a history of bilateral arthritis. During VA treatment in September 2002, the Veteran reported a chain saw incident to the left knee. At the time of his January 2016 Board hearing, the Veteran reported that he had to carry extremely heavy equipment as a mortar man and was a very slightly-built man, and that music school required a lot of marching, stepping, and turning; and that he had problems with his knees during service. On VA examination in March 2012, the Veteran reported that he injured his left knee prior to service, in a 1969 motor vehicle accident, and denied any in-service left knee injury. He reported that he had been seen for left knee pain. The examiner diagnosed the Veteran with bilateral osteoarthritis of the knees and offered a negative etiological opinion, reasoning that there is one instance of in-service “knee trouble” with no supporting documentation of additional treatment for a left knee condition during service. The examiner did not consider the Veteran’s lay statements as to post-service left knee symptoms. The Board directed the RO to provide the Veteran a VA examination and obtain an adequate etiological opinion. On VA examination in February 2018, the Veteran was diagnosed with left knee strain and osteoarthritis. The examiner offered a negative etiological opinion, reasoning that the claims file was silent for any left knee injury during service, that the Veteran, in his March 2012 VA examination, reported injuries to the left knee prior to service as well as post-service, that his arthroscopic surgery was in 1995, 20 years after service, and his total knee replacement was in 2012, 36 years after service, that there was a lack of treatment records in the time period following service, and that there were discrepancies in information. The examiner reported that the disability was less likely than not related to service and also that he was unable to provide an etiological opinion without resorting to mere speculation. It does not appear that the examiner considered the Veteran’s lay statements of being slightly-built during service and having to carry heavy gear as a mortar man and that music school required a lot of marching, stepping, and turning, or his lay statements of in-service and post-service left knee symptoms. On remand, the RO should obtain an adequate addendum opinion. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral pes planus. As discussed in the May 2016 Remand, the Veteran’s enlistment examination dated in August 1970 indicates that he presented with pes planus, first degree, asymptomatic. At the time of his January 2016 Board hearing, the Veteran reported that he had to carry extremely heavy equipment as a mortar man and was a very slightly-built man, and that music school required a lot of marching, stepping, and turning; and that he had problems with his feet during service. The Board directed the RO to afford the Veteran a VA examination to determine if he has bilateral pes planus and to obtain an adequate opinion. In February 2018, the examiner diagnosed the Veteran with flatfeet, pes planus, and hallux valgus, and reported that X-ray examination was not warranted. The Veteran reported the onset of such on 1972, with pain in both feet. He reported that he was given a rub to apply to his feet, without relief. The examiner offered a negative etiological opinion, reporting that the Veteran’s pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service, as there is no evidence that Veteran has had any evaluation of pes planus, and no use of orthopedic inserts, or surgeries or X-ray examinations. The examiner opined that the Veteran’s current bunions, hallux valgus, would not be a progression of any pes planus. It appears that the examiner did not consider the Veteran’s February 2016 VA treatment records indicating that he presented for orthopedic inserts, nor does it appear that the examiner considered the Veteran’s pes planus, diagnosed and part of the Veteran’s VA problem list for many years. In this regard, it is not clear why the lack of evaluation, surgery, the use of inserts, or X-ray examination, supports the conclusion that the Veteran’s preexisting pes planus was not aggravated by any incident of service, especially when the examiner declined to conduct a current X-ray examination. As such, the February 2018 VA opinion is inadequate and on remand, the RO should afford the Veteran a VA examination, with X-ray examination, if warranted, and obtain an adequate etiological opinion. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for Hepatitis C, to include as secondary to exposure to contaminated water at Camp Lejeune. As discussed in the May 2016 Remand, the Veteran’s service treatment records are silent for Hepatitis C and his service personnel records indicate that he was stationed at Camp Lejeune from December 1974 to April 1975. In statements made during the course of the appeal, and during his January 2016 Board hearing, the Veteran asserted that his Hepatitis C is related to exposure to contaminated drinking water while serving at Camp Lejeune. On VA examination in November 2011, the examiner diagnosed the Veteran with Hepatitis C, and noted that he was first diagnosed with such in 2002. The Veteran reported his relevant risk factors, to include a history of intravenous (IV) heroin and intranasal cocaine use, ear piercing, encounters with female prostitutes during and after service, and alcohol and marijuana use. He denied occupational exposure to blood, a family history of liver disease, exposure to carcinogens, and blood transfusions. In a March 2012 addendum, the examiner offered a negative etiological opinion, citing relevant medical literature, reasoning that the Veteran reported a number of risk factors, discussed above, and that there was no clinical or objective evidence indicating that the Veteran’s Hepatitis C was incurred during service. The Board, in May 2016, directed the RO to forward the claims file to the examiner who offered the March 2012 addendum and provide her an opportunity to review any additional evidence added to the claims file and to render an adequate etiological opinion. In February 2018, the Veteran underwent additional VA examination, and the examiner recited the Veteran’s service in Camp Lejeune and his relevant risk factors, as discussed above, and offered a negative etiological opinion, reasoning that Hepatitis C is not spread through contaminated water or food, and there is evidence that the Veteran was an IV drug user, the likely cause of his Hepatitis C, as such is known to be transmitted by body fluids, including using dirty needles during IV drug use. However, since the Board’s May 2016 Remand, the Veteran has been granted service connection for PTSD in a March 2018 rating decision. During the Veteran’s January 2016 Board hearing, he asserted that his substance abuse issues, the likely cause of his Hepatitis C, per the VA examiners, manifested during service, as secondary to his psychiatric disorder, for which service connection is now in place. On remand, the RO should obtain an adequate addendum opinion as to whether the Veteran’s substance abuse was caused or aggravated by the service-connected PTSD, and if so, whether Hepatitis C is causally related to the substance abuse found to be secondary to the service-connected PTSD.   4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. The Veteran’s service treatment records include a February 1975 Report of Medical History in which the Veteran reported a history of “trick” or locked knee and the examiner made a notation of “knee trouble, EPTE.” During VA treatment in January 1993, the Veteran reported a motor vehicle accident, one day prior, with bilateral knee pain. During VA treatment in September 2000, the Veteran reported bilateral knee pain since 1972 with a history of bilateral arthritis. During VA treatment in September 2002, the Veteran reported a motor vehicle accident at the age of 14, with prior arthroscopic treatment in 1997 to the right knee. At the time of his January 2016 Board hearing, the Veteran reported that he had to carry extremely heavy equipment as a mortar man and was a very slightly-built man and that music school required a lot of marching, stepping, and turning; and that he had problems with his knees during service. The Veteran was denied service connection for a knee condition in February 2001. On remand, the RO should obtain an addendum opinion, as his right knee has been examined in February 2018, as to the etiology of his right knee disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any of the Veteran’s outstanding service treatment records, to include any clinical records, from the NARA and/or NPRC and/or any other relevant source of personnel, unit, or military records, considering the July 1971 service personnel record indicating that the Veteran’s service number had been assigned to another service member and the Veteran’s October 2012 telephone contact with the RO alerting them of such.   2. Obtain the Veteran’s updated VA treatment records. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s left knee disability and right knee disability. The examiner is asked to opine to the following: Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s left knee disability and/or right knee disability had its clinical onset during active service or is related to any incident of service, considering his statements of being slightly-built during service and having to carry heavy gear as a mortar man and having to do a lot of marching, stepping, and turning in music school; his February 1975 Report of Medical History, wherein he reported a history of "trick" or locked knee; his post-service May 1979 left knee effusion and minimal hypertrophic spurring after playing basketball; as well as his lay statements of in-service and post-service right and left knee symptomatology? For the purpose of providing this opinion, the examiner should accept as true that the Veteran’s knees were sound at the time he entered service in May 1971. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of bilateral pes planus. All necessary tests and studies should be accomplished, specifically, X-ray examination, if warranted, and all clinical findings should be reported in detail. The examiner is asked to opine to the following: Is it at least as likely as not (at least a 50 percent probability) that the Veteran's pre-existing pes planus was aggravated (i.e.,, underwent a permanent increase in severity) during his active service, considering his lay statements of being slightly-built during service and having to carry heavy gear as a mortar man and having to do a lot of marching, stepping, and turning in music school, as well as his lay statements of in-service and post-service foot symptomatology, and his February 2016 prescription for orthopedic inserts? 5. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s Hepatitis C. The examiner is asked to opine to the following: (a) Is it at least as likely as not (at least a 50 percent probability) that the Veteran’s substance abuse is proximately due to service-connected PTSD and/or aggravated beyond its natural progression by service-connected PTSD? (b) If so, is it at least as likely as not (at least 50 percent probability) that the Veteran’s Hepatitis C is at least as likely as not proximately due to substance abuse found to be secondary to service-connected PTSD and/or aggravated beyond its natural progression by substance abuse found to be secondary to service-connected PTSD? P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Purdum