Citation Nr: 18153217 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-39 261 DATE: November 28, 2018 REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for pleural disease, to include as due to asbestos exposure, is remanded. Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1969 to March 1971. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains at least one issue that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on those issues. Those issues include the claims for entitlement to service connection for hypertension, a heart disorder, and diabetes mellitus, all secondary to herbicide exposure. 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for a right knee disorder is remanded. 3. Entitlement to service connection for pleural disease, to include as due to asbestos exposure, is remanded. 4. Entitlement to service connection for hepatitis C is remanded. VA is obligated to provide a medical examination when the record contains competent evidence that a claimant has a current disability or symptoms of a current disability, the record indicates that a current disability or symptoms of a current disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). See also 38 C.F.R. § 3.159(c)(4). The Veteran claims entitlement to service connection for hepatitis C and appears to identify 3 known risk factors for contracting hepatitis C in service – use of intravenous (IV) drugs, participation in high-risk sexual activity, and direct skin exposure to blood. Notably, service connection cannot be awarded based on IV drug use of willful misconduct origin See 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(d). However, the Board has insufficient information as to the claimed events of participation in high-risk sexual activity and direct skin exposure to blood and VA examination is warranted. Similarly, the Veteran claims asbestos-related lung disease due to asbestos exposure while service in the Navy. His military occupational speciality as a boatswain’s mate is considered, by itself, to have minimal probability of asbestos exposure. Notably, an October 1971 VA imaging reflecting questionable minimal infiltration or fibrosis. On this evidence, the Board finds that examination and opinion is necessary. Additionally, the Veteran indicated he has been treated for all of these disorders at Harrison Primary Care. Those records do not appear to be part of the claims file. The Board defers consideration of the need for examination on the bilateral knee claims pending the receipt of any additional records. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the “chicken-or-egg” dilemma faced by VA when requesting opinions and making credibility determinations with an undeveloped record, and recognizing that fact-finding is a responsibility that is ultimately committed to the Board and not a VA medical examiner). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment records dated since 1983 concerning the treatment of his left knee and right knee disorders, pleural disease, and hepatitis C, to include complete records from Harrison Primary Care. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed pleural disease. The examiner must opine whether any diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include in-service asbestos exposure. The examiner should address the following: • the service treatment records reflecting treatment for bronchitis as well as other upper respiratory symptoms; • October 1971 VA imaging reflecting questionable minimal infiltration or fibrosis; • February 2006 private medical imaging reflecting asbestos-related pleural disease; • the Veteran’s April 2006 statement to the Social Security Administration (SSA) that he was employed as an “asbestos worker” for a mechanical insulation business since 1990; and • the Veteran’s April 2012 statement that he was first exposed to asbestos during service while cleaning on board his ship. A complete rationale must be provided for any opinion offered. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed hepatitis C. The examiner must opine whether any diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The examiner is advised that a document that appears to be from the Veteran indicates that he used intravenous drugs, participated in high-risk sexual activity, and had direct skin exposure to blood. The examiner should elicit a history of these things from the Veteran. A complete rationale must be provided for any opinion offered. (Continued on the next page) 4. After completing the actions detailed above, readjudicate the claims. If any 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. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel