Citation Nr: 21070415 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-03 299 DATE: November 23, 2021 REMANDED Entitlement to service connection for a Hepatitis C is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service from March 1967 to February 1969. These matters originate from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for Hepatitis C and a right knee disability. These matters return to the Board of Veterans' Appeals following a June 2021 Board remand for development consistent with a February 2021 Court of Appeals for Veterans Claims (CAVC) order implementing the terms of a Joint Motion for Partial Remand (JMPR) by the Veteran and VA. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2021 the Board directed the RO to obtain any and all VA treatment records from the Gainesville VA Medical Center (VAMC), Richmond VAMC, and/or North Florida/South Georgia Veterans Health System (VHS) pertinent to the period from September 2003 to May 2008, to include Vista records. In July 2021 medical records from the Richmond VAMC and Gainesville VAMC were added to the claims file, covering the periods from March 2008 to April 2008 and September 2003 to May 2008, respectively. The Board acknowledges the Veteran's contention, raised through his representative in an October 2021 brief, that there was not substantial compliance with the June 2021 remand directives. The Veteran contends as follows: "A Supplemental Statement of the Case (SSOC) was issued on [August 2021], stating that the Veteran's VA treatment records were obtained, reviewed and considered. However, although the SSOC's listing of evidence refers to the Board's Remand and to records obtained from the VAMC Richmond and VAMC Gainesville, there is no mention whatsoever of the North Florida/South Georgia Veterans Health System. Neither of the words "Florida" or "Georgia" appear within the SSOC." 10/21/2021, Appellate Brief, p. 2. In this regard, the Board notes that the treatment records from the Gainesville VAMC reflect that the Gainesville VAMC facility is a division of the North Florida/South Georgia Health Care System (HCS). Accordingly, while the August 2021 SSOC does not explicitly include the words "Florida" or "Georgia", it does, as noted by the Veteran's representative, reflect consideration of the Gainesville VAMC records. In light of the foregoing, the Board finds that there has been substantial compliance with its June 2021 remand directives. However, as discussed further below, the Board finds that additional remand is necessary for other reasons. 1. Entitlement to service connection for Hepatitis C is remanded. The Veteran's Hepatitis C claim arises from a November 2010 claim to reopen a previously denied claim. The Board acknowledges that VA is obligated to liberally construe claims based on the reasonable expectations of a non-expert claimant and to determine all potential claims raised by the evidence. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (U.S. 2009). In this regard, the Board notes that the record reflects evidence relating to cirrhosis of the liver, and a liver transplant. However, these disorders have already been service-connected, and the claim currently on appeal is exclusive of claims for cirrhosis and/or liver transplant residuals. In April 2020 the Board denied service connection for, in pertinent part, Hepatitis C, cirrhosis of the liver, and "liver transplant." The February 2021 CAVC order vacates only that part of the Board decision relating to the Veteran's Hepatitis C claim. The February 2021 CAVC order implements the terms of the JMPR agreed to by the Veteran, through counsel, and VA. The Board will not raise issues on its own initiative where the Veteran, represented by counsel, had the opportunity to raise those issues himself. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011) ("[T]he Board... was entitled to assume that the arguments presented by [the appellant] were limited for whatever reason under the advice of counsel and that those were the theories upon which he intended to rely."), aff'd, 724 F.3d 1325 (Fed. Cir. 2013); Mason v. Shinseki, 25 Vet. App. 83, 95 (2011) (holding that "the Court will not invent an argument for a represented party who had ample opportunity and resources to make that same argument, but, for whatever reason-be it strategy, oversight, or something in between-did not do so"); Robinson v. Peake, 21 Vet. App. 545, 554 (2008) ("The presence of [an] attorney throughout the appeals process before the Agency is a significant factor... [w]e presume that [the] attorney, an experienced attorney in veteran's law, says what he means and means what he says"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Veteran is entitled to only one review on appeal. 38 U.S.C. § 7104(a). Where the Veteran has already received a Board decision relating to claims for cirrhosis of the liver and liver transplant; the JMPR to which the Veteran was a party takes no issue with the Board's decision on the claims for cirrhosis of the liver and liver transplant; and where CAVC has not vacated those parts of the April 2020 Board decision dealing with cirrhosis and liver transplant, the Board will here limit its construction of the issues before it accordingly. A March 2016 Board hearing transcript reflects the Veteran's contentions that he was diagnosed with Hepatitis C in approximately 2004; that he received treatment for Hepatitis C following his diagnosis; and that he contracted Hepatitis C due to either his exposure to blood while handling causalities during his active service and/or following the use of an "air gun" to deliver immunizations during his active service. 03/25/2016, Hearing Testimony, pp. 24 26. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Records from the Gainesville VAMC received by VA in July 2021 include a February 2006 treatment pathology report documenting "moderate chronic hepatitis and granulomas." 07/09/202, CAPRI, Gainesville VAMC, p. 298. The record reflects that the Veteran received vaccinations for Hepatitis B and Hepatitis AB in February 2006, August 2007, and September 2007. Id. at pp. 291, 181, 180. A February 2008 treatment note describes the Veteran as having "granulomatous hepatitis." Id. at 120. Exclusion of the previously adjudicated claims for cirrhosis and liver transplant residuals notwithstanding, the Board is mindful of its obligation to address all claims reasonably raised by the evidence. Here, the evidence reflects a diagnosis of some kind of chronic hepatitis in approximately 2006. While the Veteran has previously been afforded VA examinations in relation to his Hepatitis C claim, these examinations were performed without the benefit of the Gainesville VAMC and Richmond VAMC records obtained in July 2021. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Accordingly, these examinations are inadequate, and their probative value is limited. In light of the foregoing, the Board finds that the Veteran should be afforded a VA examination to determine whether the Veteran has a current liver disability, including Hepatitis C, but excluding cirrhosis and/or liver transplant residuals, resulting from an event, injury, or occurrence in service, to include receipt of immunizations by air gun or exposure to blood while handling casualties. 2. Entitlement to service connection for a right knee disability is remanded. At his March 2016 Board hearing the Veteran testified that during his active service in Vietnam, he was forced to jump out of a truck to avoid being crushed by a towed tank that had come loose; the Veteran testified that he cut open his knee at that time. 03/25/2016, Hearing Testimony, p. 18. The Veteran testified that he was treated in Vietnam, but that no x-rays were performed. Id. The Veteran further testified that approximately two to three years after the end of his active service, he began to notice symptoms including popping and swelling of his right knee, and that these symptoms have continued to the present day. A September 2019 VA treatment note reflects edema of the knee. 10/29/2019, CAPRI, p. 200. The Veteran was afforded a VA examination in October 2016, at which time he reported that he had been experiencing symptoms including popping, swelling, stiffness, pain, and weakness since the time of his active service. 11/1/2016, C&P Exam, p. 2. The VA examiner diagnosed the Veteran with enthesopathic changes along the right patella. 11/01/2016, C&P Exam, p. 1. The examiner stated that the Veteran's enthesopathic changes along the right patella were less likely than not the result of his jump from the truck while in service. The examiner stated that the enthesopathic changes seen on x-ray at the time of examination are not usually associated with acute traumatic injury such as that reported by the Veteran. 11/1/2016, C&P Exam, pp. 13 14. The Board acknowledges that the October 2016 VA examination references VA treatment records dated during the September 2003 to May 2008 period. However, as these records were not associated with the claims file until July 2021, the Board cannot presume that the records reviewed by the October 2016 VA examiner are the same as those subsequently added to the claims file. The Board's ability to assess the probative value of the October 2016 VA examination is thus frustrated. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Here, the October 2016 VA examination was rendered without the benefit of the Gainesville VAMC and Richmond VAMC treatment records obtained pursuant to the Board's June 2021 remand. On this basis alone, the October 2016 VA examination is inadequate for adjudication purposes, and a remand is required to obtain a VA examination that reflects consideration of all evidence of record. The Board acknowledges an August 2010 medical opinion from a private medical provider who diagnosed the Veteran with posttraumatic residual degenerative joint disease and osteoarthritis of the right knee and opined that this disability was at least as likely as not the result of his jump from the truck during his active service. The provider stated that the Veteran's knee disability was so severe as to likely require a total knee replacement. However, the probative value of this opinion is undermined by the analysis of the October 2016 VA examiner, who observed that the August 2010 diagnosis of posttraumatic residual degenerative joint disease and osteoarthritis was not confirmed by imaging studies performed in October 2016. The August 2010 private medical report does not reflect consideration of any imaging studies. The October 2016 VA examiner further stated that the Veteran's clinical presentation was inconsistent with a diagnosis of osteoarthritis, noting that "[t]here is vigorous objective evidence in current peer reviewed orthopedic literature providing that a severely arthritic knee joint requiring total knee replacement would not have full range of motion. Further, 'crepitus and grinding' can also be found in a normal, nonarthritic knee and is not indicative of degeneration of the joint." VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006). In light of the foregoing, the Board finds that the Veteran's right knee disability claim should be remanded to obtain an addendum opinion that address all evidence of record. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hepatitis or liver disabilities, excluding cirrhosis and/or residuals of liver transplant. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any hepatitis or liver disabilities, excluding cirrhosis and/or residuals of liver transplant, disabilities identified during the examination and the pendency of this claim. For each diagnosed disability, please respond to the following: (a.) Whether any diagnosed hepatitis or liver disabilities, excluding cirrhosis and/or residuals of liver transplant disability is at least as likely as not related to an in-service injury, event, or disease, to include air gun immunization and/or exposure to blood while handling casualties, or whether it first had its onset during a period of active service. (b.) Whether the Veteran's hepatitis or liver disabilities, excluding cirrhosis and/or residuals of liver transplant, is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. 2. Forward the claims file, including this remand, to the examiner who provided the October 2016 VA medical opinion. If the October 2016 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is advised that additional medical records covering the period from September 2003 to May 2008 have been added to the claims file since the time of the October 2016 opinion. The examiner should identify any right knee disabilities identified during the examination and the pendency of this claim. For each diagnosed disability, please respond to the following: (a.) Whether the Veteran's right knee disability is at least as likely as not related to an in-service injury, event, or disease, or whether it first had its onset during a period of active service. (b.) Whether the Veteran's right knee disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. (Continued on the next page) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.