Citation Nr: 21062606 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 13-09 042A DATE: October 8, 2021 ORDER Service connection for hernias with persistent ascites, as secondary to service-connected unspecified anxiety disorder with alcohol dependence is granted. REMANDED Service connection for a left knee condition. Service connection for a right knee condition. FINDING OF FACT The Veteran's hernias with persistent ascites are caused by his service-connected unspecified anxiety disorder with alcohol dependence. CONCLUSION OF LAW The criteria for service connection for hernias with persistent ascites, as secondary to service-connected unspecified anxiety disorder with alcohol dependence, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1971 to September 1973. The case is on appeal from an October 2011 rating decision. In July 2015, the Veteran testified at a Board hearing. The case was most recently before the Board in January 2016. At that time, the Board denied a claim for a primary alcohol use disorder, and remanded service connection claims for cirrhosis of the liver, hepatic encephalopathy, a hernia, right and left knee disorders, a dental disorder, and for a psychiatric disorder other than alcohol use disorder, were remanded for VA examinations and further development. While the case was in remand status, the RO granted service connection for unspecified anxiety disorder with alcohol dependence, kidney transplant, liver transplant with scars, diabetes mellitus type II, and peripheral neuropathy for the upper and lower extremities. As the benefit sought was granted in full for these disorders, they are no longer on appeal. With respect to the dental disorder claim, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150 (setting forth the schedule of ratings for dental and oral conditions). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. In a July 2021 rating decision, the RO granted service connection for dental treatment for tooth loss due to poor health secondary to unspecified anxiety disorder with alcohol dependence. The Veteran wears dentures following the loss of all teeth; however, his teeth loss is not the result of a compensable condition, e.g., loss of substance of body of maxilla or mandible. Therefore, the grant for dental treatment purposes but not for compensation is appropriate, and thus the claim for a dental disorder is also considered granted in full and no longer on appeal. Service connection for hernias. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis At his July 2015 Board hearing, the Veteran testified that his persistent hernias may be caused by strenuous activities during service to include working out and lifting exercises. He indicated that because of stigma associated with going to sick call that he did not report the problem. The Veteran underwent a laparoscopic umbilical hernia repair in March 2009. Both the preoperative and postoperative diagnoses were "umbilical hernia in the context of hepatic cirrhosis." It was reported that the Veteran has a known history of stable alcoholic cirrhosis mainly complicated by ascites (the accumulation of fluid in the peritoneal cavity, causing abdominal swelling). Medical treatment records reflect that the Veteran continued to experience "persistent ascites," with swelling and hernias, following the March 2009 hernia repair. In December 2013, June 2014, February 2015, and June 2015, he was diagnosed with a left inguinal hernia. The Veteran underwent a VA examination in March 2016. He was found to have a current inguinal hernia, along with the prior March 2009 hernia repair. It was then opined that the Veteran's hernia condition was less likely than not incurred in or caused by an in-service injury or event, as there was no documentation of management of a hernia condition during military service. However, the examiner also indicated that should any unfiled or unreported medical record relating to the condition be made available, an opinion should be rendered as appropriate. The examiner was not requested to provide an opinion as to whether his hernias could be secondary or aggravated by a current service-connected condition. The Board finds that the Veteran has had diagnoses of hernias and persistent ascites during the appeal period, and it is a result of his service-connected unspecified anxiety disorder with alcohol dependence that led to cirrhosis. The medical notes for the March 2009 hernia repair clearly state that the hernia was in the context of hepatic cirrhosis, and that his cirrhosis was mainly complicated by ascites, which causes abdominal swelling. In consideration of the totality of the evidence, and when resolving reasonable doubt in the Veteran's favor, the Board finds that he currently has hernias that are related to his service-connected unspecified anxiety disorder with alcohol dependence. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Gilbert, 1 Vet. App. at 49. Accordingly, service connection is warranted on a secondary basis for hernias with persistent ascites. REASONS FOR REMAND 1. Service connection for a left knee condition. 2. Service connection for a right knee condition. During the July 2015 Board hearing, the Veteran testified that he injured both knees during service, primarily during a three mile run when he tripped and fell while training at Parris Island. The drill sergeant and master gun sergeant then came over and began kicking and beating on him and he passed out. He testified that his knees swelled after the fall, and he was hospitalized after that but that care providers during the treatment could not determine what was wrong. Following the Board remand, the Veteran underwent a VA examination in March 2016. The Veteran was found to only have diagnoses of bilateral knee strain, and reported that radiographs were "normal," with no degenerative or traumatic arthritis. It was opined that his bilateral knee strain was less likely than not incurred in or caused by an in-service injury or event, or proximately due to service, as there was no documentation of management of a knee condition during military service. In April 2020, an addendum medical opinion was obtained. The examiner reported that she was unable to locate a current knee diagnosis other than the diagnosed bilateral knee strain on the 2016 VA examination. It was stated that the knee strain diagnosis would not cause widespread arthritis associated with swelling, and that it is general medical knowledge that widespread arthritis with swelling would suggest an autoimmune disease such as rheumatoid arthritis, not the result of an acute or chronic knee strain. It was then opined the widespread arthritis found in his service treatment records (STRs) is less likely than not a disease process which relates to his bilateral knee conditions. STRs show treatment for polyarthritis of multiple joints. VA treatment records reflect the Veteran having additional knee problems. In August 2012, his lower extremities were noted for symmetric edema to the knees. In March 2015 during an ambulation assessment, he was using a wheelchair and a walker for short distances, with "notable instability and shuffling gait, slow pace (tends to stand and walker with bent knees)." In March 2016 he reported that his knees hurt and that it was hard to walk, in December 2019 he fell and had some bruising, and in March 2021 he had "profound bilateral lower extremity weakness encompassing all movements of the feet as well as bilateral knee flexors." The Board finds that a remand is warranted for a new VA examination for the Veteran's bilateral knee condition. It appears from the record that since the time of the March 2016 examination, his left and right knee conditions have worsened. Additionally, while the April 2020 examiner stated that she was unable to locate a current knee diagnosis, even without a clinical diagnosis, pain may constitute a current disability to the extent it results in functional impairment. See Saunders, 886 F.3d at 1367-68. Also, the issue of whether the knee conditions are related to arthritis needs clarity. As noted, STRs indicate polyarthritis of multiple joints. While the March 2016 VA examiner stated there was no degenerative or traumatic arthritis of the knees, the April 2020 examiner indicated that the knee swelling suggests an autoimmune disease such as rheumatoid arthritis. However, an opinion was not provided as to whether any diagnosed arthritis impacting the knees was manifested within one year of discharge of service, per the Board's January 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The discrepancies of the record warrant clarification. Additionally, it is reasonably raised by the record that the bilateral knee condition may be secondary or aggravated by a current service-connected condition, and an opinion for this should be obtained upon remand. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since July 2021. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-service examination is not feasible) with an appropriate specialist, in connection with the Veteran's left and right knee claims. The record, including a complete copy of this remand, should be made available for review (a) The examiner should first identify the Veteran's current diagnoses of the left knee and right knee, that may include pain alone that rises to the level of functional impairment. The examiner should additionally identify whether the Veteran has any diagnosis of arthritis of the knees, to include traumatic, degenerative, or autoimmune related such as rheumatoid arthritis. (b) The examiner should then opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left and right knee condition: (i) had its onset during, or is otherwise related to, active service, or (ii) is caused or aggravated by a service-connected disability. (iii) If there is a diagnosis of arthritis of either knee, the examiner should specifically opine whether the arthritis manifested during or within one year of discharge from service. Aggravation is an increase in severity beyond the natural progress of the disease or temporary flare-up. The examiner is asked to specifically consider and discuss: (1) STRs indicating polyarthritis of multiple joints; (2) the March 2016 VA examination finding that radiographs were "normal," with no degenerative or traumatic arthritis, and the April 2020 addendum opinion that his knee swelling suggests an autoimmune disease such as rheumatoid arthritis; (3) VA treatment records of instability and use of a wheel chair and walker, difficulty walking with knee pain, and profound weakness in the bilateral knee flexors (see March 2015, March 2016, December 2019, and March 2021 medical CAPRI documents). (Continued on the next page) If the absence of treatment during or after service plays a role in the formation of the opinion, the medical importance of this should be explained. The examiner should provide rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.