Citation Nr: 21015178 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-18 043 DATE: March 16, 2021 ORDER Entitlement to service connection for knee disability, left is granted. Entitlement to service connection for knee disability, right is granted. Entitlement to service connection for hepatitis C is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for arthritis, left leg is remanded. Entitlement to service connection for arthritis, right leg is remanded. Entitlement to service connection for peripheral vascular disease is remanded. FINDINGS OF FACT 1. The evidence of record is in equipoise as to whether the Veteran’s left knee disability arose during or as a result of his active service. 2. The evidence of record is in equipoise as to whether the Veteran’s right knee disability arose during or as a result of his active service. 3. The preponderance of the evidence indicates that the Veteran’s Hepatitis C arose during or as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for knee disability, left, have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.306, 3.310. 2. The criteria for entitlement to service connection for knee disability, right, have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.306, 3.310. 3. The criteria for entitlement to service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.306, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1973 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and June 2013 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a January 2019 hearing before the Board of Veterans’ Appeals (Board). In an April 2020 decision, the Board remanded the issue on appeal. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. and 2. Entitlement to service connection for knee disability, left and knee disability, right The Veteran asserts that his current bilateral knee disabilities arose during or as a result of his active service. The Veteran’s service treatment records (STRs) are negative for complaints, treatment, or diagnoses of knee conditions during active service. In February 2011, the Veteran filed a claim for service connection for knee conditions. The Veteran’s post-service VA and private treatment records do not reflect complaints or treatment for knee problems in the 12-month period immediately following active service or for medical opinions supporting the claim. November 2009 VA treatment records reflect complaints of chronic knee pain. July 2011 VA treatment records reflect the Veteran complaining of knee pain and asserting that he had experienced knee problems since injuring them during basic training in 1973. In a December 2011 Notice of Disagreement (NOD) statement, the Veteran asserted that he had experienced problems with his knees since basic training, and he believed these problems had caused his current knee problems. In a May 2015 Form 9 statement, the Veteran asserted that he was forced to drop out of road marches during basic training due to pain in his knees and legs. During his January 2019 Board hearing, the Veteran testified that he injured his knees during basic training and had experienced knee problems since that time. He also asserted that a doctor had told him that his knee conditions were possibly due to his in-service injuries. During the Veteran’s October 2020 VA examination for knee conditions and the accompanying December 2020 VA medical opinion, the VA examiner diagnosed the Veteran with bilateral knee tendonitis and patellofemoral pain syndrome and opined that these conditions were at least as likely as not related to active service. The examiner noted that the Veteran was injured in 1973, had been seen multiple times for the subsequent conditions over the years, and there was no documentation of other injuries. They also stated that the original 1973 injury was documented. The Veteran has consistently asserted that his current knee problems are due to his in-service injuries. See, e.g., March 2021 Appellate Brief. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the evidence of record to be roughly in equipoise. The October 2020 VA examiner provided a positive etiology opinion for the Veteran’s knee conditions, but they stated that the 1973 injury was documented. The Board had reviewed the evidence of record, including the STRs, and there is no documentation of such injuries occurring; however, the Veteran has consistently asserted and testified under oath that he injured both knees during basic training and had experienced knee problems since that in-service event. The Veteran is competent to report these injuries, and the Board finds the Veteran credible. Additionally, there is no evidence suggesting the Veteran’s knee problems are due to another cause; however, his treatment records only reflect knee problems from 2009 onwards. The Board finds the evidence for and against the Veteran’s claims to be roughly in equipoise. Based on these facts, the benefit of the doubt will be given to the Veteran, and the claims for service connection for left and right knee disabilities are granted. 3. Entitlement to service connection for hepatitis C The Veteran asserts his hepatitis C condition arose during or as a result of his active service. The Veteran’s STRs are negative for complaints, treatment, or diagnosis of hepatitis C. There is also no documentation of receiving any shots or vaccinations during service. The Veteran’s VA and private treatment records are negative for evidence of complaints or treatment of hepatitis C during the 12-month period immediately following active service or for medical opinion supporting the Veteran’s claim. The earliest documented evidence of hepatitis C is in a November 2009 VA treatment record that mentions a diagnosis for the condition in 2007. Treatment for chronic, recurrent hepatitis C is reflected throughout VA treatment records from that point forward. In September and December 2011 statements in support of his claim, the Veteran asserted that he contracted hepatitis C during basic training, due to shots he received. During the Veteran’s January 2019 Board hearing, the Veteran testified that he was vaccinated via air-gun during basic training, and he believed that he contracted hepatitis C due to the lack of proper sterilization and safety measures. The Veteran believed he was first diagnosed with hepatitis C in 2010. During the Veteran’s October 2020 VA examination for hepatitis, the VA examiner noted that he had been diagnosed with hepatitis C in 2016. In an accompanying December 2020 VA medical opinion, the VA examiner opined that it was at least as likely as not that the Veteran’s condition arose during or as a result of his active service, including the claimed in-service immunization by air gun. The examiner stated that increasing numbers of veterans who served in the same time period as the Veteran were claiming connection to hepatitis as a result of this form of immunization. The Board finds the preponderance of the evidence is in favor of the Veteran’s claim. While the Veteran’s immunizations are not documented or among the evidence of record, the Veteran testified, under oath, that he received such immunizations, and the VA examiner noted that increasing numbers of veterans are asserting a connection between the immunization methods used during the relevant time period and the development of hepatitis C. No medical opinion contradicts the Veteran’s claim, and the only major negative evidence is the over 40-year period between the asserted in-service incident and the Veteran filing for service connection. Nonetheless, the Board finds the positive evidence of record outweighs the negative evidence. Accordingly, the claim for service connection for hepatitis C is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. In April 2020, the Board remanded the claim for service connection for a VA examination. The VA examiner was instructed to provide an opinion on whether the Veteran's hearing loss clearly and unmistakably preexisted his service. If the examiner found it did clearly and unmistakably preexist service, the examiner was to opine whether it was clearly and unmistakably not aggravated (worsened beyond its natural progression) by service. In an October 2020 VA examination for hearing loss, the VA examiner provided etiology opinions, but they did not state whether any conditions clearly and unmistakably preexisted service or whether such conditions were clearly and unmistakably aggravated by service. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268,271 (1998). Accordingly, because the October 2020 VA examination did not substantially comply with the Board’s remand directives, the claim must be remanded again. 2. Entitlement to service connection for tinnitus is remanded. The claim of entitlement to service connection for tinnitus remains inextricably intertwined with the remanded claim for service connection for hearing loss, given its anatomical origins, and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. and 4. Entitlement to service connection for arthritis, left leg and arthritis, right leg is remanded. The Veteran asserts that his bilateral arthritis of the lower extremities arose during or as a result of his active service. In an April 2020 decision, the Board remanded these claims for a VA examination and etiology opinion. During an October 2020 VA examination for arthritis, the VA examiner noted diagnoses for rheumatoid arthritis dating to 1973; however, in a December 2020 VA etiology opinion, the examiner found the conditions less likely than not related to active service. The examiner’s rationale was very short and based solely on “lack of evidence.” The Board notes that a VA examination report on the nature and etiology of a claimed condition cannot be based solely on a lack of in-service evidence. Additionally, the Board finds the December 2020 VA opinion inadequate for adjudication purposes due to the lack of rigor and detail in the rationale for the opinion. Accordingly, the RO failed to substantially comply with the Board’s directives, and these claims must be remanded for compliance with the Board’s April 2020 remand directives. Stegall v. West, 11 Vet. App. 268,271 (1998). 5. Entitlement to service connection for PVD is remanded. The Veteran asserted that he experienced PVD as a result of his active service. In February 2011, the Veteran filed a claim for service connection for peripheral artery disease. In September and December 2011 statements in support of his claim, the Veteran asserted he experienced peripheral vascular disease as a result of active service. In March 2013 and September 2014 VA treatment records, along with records from other dates, PVD is listed as a diagnosed condition. During the Veteran’s January 2019 Board hearing, the Veteran testified that he believed his claimed condition arose during or as a result of his active service, particularly injuries during basic training. During the Veteran’s October 2020 VA examination for artery and vein conditions, the VA examiner found no diagnosis of any vein and or artery condition, including PVD. Consequently, the VA examiner found that any such condition was less likely than not related to service. The Veteran denied having any such condition or any history of such a condition. The evidence of record is contradictory as to whether the Veteran has or has had a diagnosis for PVD or any other artery and vein condition during the period on appeal. Consequently, a supplementary VA medical opinion is required to clarify the Veteran’s conditions and to opine as to their nature and etiology. Accordingly, this claim must be remanded again. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination conducted by an appropriate clinician to determine the nature and etiology of any hearing loss and tinnitus. The examiner should opine whether the Veteran's hearing loss clearly and unmistakably preexisted his service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably NOT aggravated (worsened beyond its natural progression) by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease, including in-service exposure to loud noises. The examiner should also opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus is (1) etiologically related to service, (2) proximately due to his hearing loss, or (3) aggravated beyond its natural progression by his hearing loss. All opinions must be supported by a detailed rationale. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 2. Obtain a supplementary VA medical opinion from the October 2020 VA examiner or, if unavailable, from another appropriate clinician to determine the nature and etiology of the Veteran’s arthritis of the lower extremities. (a) The examiner is asked to identify whether the Veteran has or has had at any time during the period on appeal, even if currently resolved, a diagnosed vein or artery condition, including PVD. If the Veteran is found to be negative for any vein or artery condition during the period on appeal, the examiner should, to the best of their ability, attempt to reconcile the contradictory evidence and explain their conclusion. (b) For each diagnosed condition, if any, the examiner should opine whether the Veteran’s vein or artery conditions are at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease. All opinions must be supported by a detailed rationale. A lack of in-service evidence of injuries or treatment is not, by itself, a sufficient rationale for a negative opinion. If deemed necessary, a further examination may be afforded, although it is not required here. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 3. Schedule the Veteran for a VA medical examination conducted by an appropriate clinician to determine the nature and etiology of the Veteran’s arthritis of the lower extremities. The examiner should opine whether the Veteran’s arthritis conditions are at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease. All opinions must be supported by a detailed rationale. A lack of in-service evidence of injuries or treatment is not, by itself, a sufficient rationale for a negative opinion. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.