Citation Nr: 21022373 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-62 087 DATE: April 15, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for liver disease, to include infectious hepatitis is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance or housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1971 to September 1977. These matters come before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans’ Law Judge in December 2019. A transcript of the hearing has been associated with the claims file. In the May 2015 rating decision the regional office (RO) considered whether new and material evidence was present. However, the Board notes in a review of the Veteran’s claims file that a rating decision was issued in May 2013 and notice of the rating decision was sent to the Veteran in June 2013. Then the Veteran submitted a notice of disagreement in May 2014 seeking for his VA examinations to be rescheduled. As the Veteran submitted a valid notice of disagreement consideration of whether new and material evidence is warranted was unnecessary and such is not for consideration before the Board. 1. Entitlement to service connection for a low back disability 2. Entitlement to service connection for liver disease, to include infectious hepatitis 3. Entitlement to SMC based on aid and attendance or housebound status The Veteran contends that service connection is warranted for a low back disability and for liver disease to include infectious hepatitis. In addition, the Veteran contends that entitlement to SMC is warranted. The Board finds a remand is warranted for additional development. Low back disability The Veteran contends that service connection is warranted for a low back disability. In December 2019 the Veteran testified to an in-service injury to his low back while jumping on a trampoline in 1976 and that he has experienced ongoing low back pain and pain radiating down his legs since service. The Veteran testified that soon after service his low back pain and symptomology increased and he underwent surgery in 1982, after he was unable to walk due to his legs going numb and giving out. The Veteran testified at the time of his 1982 surgery a treatment provider told him that his pain and paralysis was indicative of an injury many years prior, not something from a month or week prior. Unfortunately, the Veteran reported these private treatment records are no longer available. Service treatment records show that the Veteran sought treatment in August 1976 for a back injury on a trampoline. A clinician diagnosed low back strain and advised the use of heat and no lifting for five days. In an August 1977 discharge physical examination, the Veteran reported continued back pain, and the examiner acknowledged the report and noted no neurological deficits. The Board cannot make a fully-informed decision on the issue of service connection for a low back disability because no VA examiner has fully opined as to direct and presumptive service connection. The Veteran was afforded a VA examination in May 2015 and the examiner noted that the Veteran’s current low back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. However, the examiner failed to fully address the Veteran’s lay statements, specifically additional testimony which has been associated with the claims file from December 2019. Further, the Veteran has consistently reported ongoing low back pain and symptomology including pain radiating down his legs which began after his 1976 in-service injury and worsened over time, and as such presumptive service connection should be fully addressed. As such a remand is warranted for a supplemental opinion. Liver disease Next, the Veteran contends that service connection is warranted for liver disease, to include infectious hepatitis. In December 2019, the Veteran testified to in-service treatment and hospitalization in Germany for several weeks due to a hepatitis infection in 1973 at the U.S. Army hospital in Heidelberg, Germany. This history was reported and noted in an August 1977 discharge physical examination; however the hospital records are not in the file. A remand is required to allow VA to request these potentially relevant records. Further, the Board cannot make a fully-informed decision on the issue of service connection for liver disease because no VA examiner has fully opined as to direct and presumptive service connection. The Veteran was afforded a VA examination in May 2015 and the examiner noted that the Veteran’s claimed condition was at least as likely as not incurred in or caused by the in-service injury, event or illness. The examiner noted that the Veteran had a history of infectious hepatitis A in 1973 with no sequelae, and that his hepatitis A in-service had resolved. The examiner provided conflicting conclusions noting no sequelae, but suggesting that such was related to service. VA treatment records note ongoing treatment and care for liver disease. The VA examiner failed to provide a thorough and reasoned rationale and as such a remand is warranted for a supplemental VA opinion to fully address direct and presumptive service connection and the Veteran’s lay statements. SMC Finally, because a decision on the remanded service connected issues of entitlement to service connection for a low back disability and entitlement to service connection for liver disease could significantly impact a decision on the issue of entitlement to SMC, the issues are inextricably intertwined. A remand of the claim for SMC based on aid and attendance or housebound status is required. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at the U.S. Army hospital in Heidelberg Germany from 1973. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s current low back disability and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current low back disability is caused by an in-service injury, event or disease, including an in-service low back injury in 1976? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s low back arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the May 2015 VA examination noting that the Veteran’s current low back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. Additionally, attention is invited to the Veteran’s 2019 testimony and lay statements noting an in-service injury to his low back while jumping on a trampoline in 1976 and that he has experienced ongoing low back pain and pain radiating down his legs since service. The Veteran testified that soon after service his low back pain and symptomology increased and he underwent surgery in 1982, after he was unable to walk due to his legs going numb and giving out. The Veteran testified at the time of his 1982 surgery a treatment provider told him that his pain and paralysis was indicative of an injury many years prior, not something a month or week prior. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s current liver disease and whether: (a.) Identify all current liver diseases. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current liver disease is caused by an in-service injury, event or disease? (c.) Is it at least as likely as not (a 50 percent probability or greater) the Veteran’s cirrhosis of the liver (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the VA examination in May 2015 noting that it was at least as likely as not that the Veteran’ claimed condition was incurred in or caused by the in-service injury, event or illness. The examiner noted that the Veteran had a history of infectious hepatitis in 1973 with no sequelae, and hepatitis A had resolved. Additionally, attention is invited to VA treatment records noting hepatosplenomegaly with cirrhosis and portal hypertension. As well as the Veteran’s December 2019 testimony and associated lay statements noting he was hospitalized in-service in 1973 for hepatitis. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.