Citation Nr: 21026860 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-28 808 DATE: May 4, 2021 ORDER Entitlement to service connection for a left ankle disability, to include osteoarthritis, is granted. REMANDED Entitlement to service connection for joint pain, to include as due to contaminated water at Camp Lejeune (CLCW), is remanded. Entitlement to service connection for a dental disability for treatment purposes, only, is remanded. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's left ankle disability, to include osteoarthritis, is related to his in-service injury. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for a left ankle disability, to include osteoarthritis, have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April1968 to February 1970. In April 2019, the Veteran testified a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary claims file. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office. In October 2019, the Board remanded to the agency of original jurisdiction (AOJ) the service connection claim for joint pain due to CLCW and the claim for service connection of a dental disability for treatment purposes. In addition, entitlement to service connection for left ankle osteoarthritis was denied. The Veteran appealed the Board decision denying service connection for a left ankle disability to the United States Court of Appeals for Veterans Claims (Court). The Court found that the Board failed to ensure reasonable efforts were made to obtain all VA treatment records and did not comply with VA's duty to assist in providing an adequate medical examination because the examiner failed to address the Veteran's lay statements of continuous ankle symptoms since service. In addition, the Court found that the Board provided inadequate statement of reasons or bases to support its decision when it failed to consider all applicable laws and all potentially relevant evidence. Accordingly, in a November 2020 order, the Court granted a Joint Motion for Partial Remand and vacated the Board's October 2019 decision and remanded the matters for readjudication. Pursuant to the October 2019 Remand, the AOJ obtained Salt Lake City VA medical center (MC) treatment records and VA examinations for the ankle, back, neck and shoulders. Now the matters are before the Board. The Veteran seeks service connection for a left ankle disability and joint pain. He testified that the ankle disability is the result of a misstep on a muddy road during active service at Camp Lejeune. See April 2019 Board Hearing Transcript. In addition, he contends joint pain in his neck, shoulders, back, knees, wrists, and fingers is due to drinking contaminated water at Camp Lejeune. Id. Service Connection A Veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish an entitlement to service connection for a disability on a direct basis, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307 . Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to CLCW if a Veteran, former reservist, or member of the National Guard shows: (1) that he or she served at Camp Lejeune for no less than 30 consecutive or nonconsecutive days between August 1, 1953 and December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the current disease manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309 (f). This presumption may also be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Diseases associated with exposure to contaminants in the water supply at Camp Lejeune, North Carolina, if the Veteran served for at least 30 days are: (1) kidney cancer; (2) liver cancer, (3) non-hodgkin's lymphoma, (4) adult leukemia; (5) multiple myeloma; (6) Parkinson's disease; (7) aplastic anemia and other myelodysplastic syndromes; and (8) bladder cancer. 38 C.F.R. §§ 3.307 (a)(7), 3.307 (d). Thus, significantly, prostate cancer is not a disease that can be presumptively service-connected based on Camp Lejeune service. Notwithstanding the foregoing provisions regarding presumptive service connection, a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a) (2019). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2007) Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App., at 54. Left Ankle Disability, to include Osteoarthritis As an initial matter, the Board observes that in July 2020, October 2020, and January 2021, there was a VA ankle examination, VA medical opinions, and VA medical center (MC) treatment records added to the claims file that were not considered by the AOJ with respect to service connection for a left ankle disability. Specifically, the January 2021 supplemental statement of the case only addresses the issue of entitlement to service connection for joint pain due to CLCW. Although these files were added to the Veteran's claims file without a waiver of initial review of the evidence by the AOJ, the Board finds that it may proceed to adjudicate the instant left ankle disability claim with no prejudice to the Veteran, as it is granting service connection for left ankle ostearthritis. The Veteran testified his left ankle disability is related to an in-service sprain that caused continued pain and ankle instability until the present time. See Notice of Disagreement, received October 5, 2016. The Veteran has a current osteoarthritis, left ankle, diagnosis. See, e.g., July 2020 VA ankle examination. As such, element one under Shedden is met. Notably, although the Veteran has been diagnosed with osteoarthritis of the left ankle, there is no radiographic evidence of the condition in the record prior to 2006. See Salt Lake City VAMC treatment record, dated September 7, 2006. Because the record does not establish that the Veteran had arthritis involving his left ankle within one year from the date of separation from service, presumptive service connection is not warranted. See 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). Regarding the in-service injury, event, or illness requirement for entitlement to service connection, the Veteran's service treatment records (STRs) document an injury to the left ankle that required a week of light rest. In addition, the Veteran's November 1970 separation examination noted a scar on the left ankle. As such, element two under Shedden is met. Thus, the dispositive issue is whether the record establishes a nexus between the Veteran's left ankle disability and his in-service injury. The Veteran underwent VA examination for the ankle in July 2016. The examiner opined that it was less likely than not that the current left ankle osteoarthritis with history of chronic ligament injury, as noted by radiograph studies in 2006 and 2015, was associated with a left ankle scar or injury that required light duty. As rationale, the examiner indicated that there were no medical records showing how the Veteran sustained the scar. Further, there were no additional treatment records following placement on light duty for the in-service ankle injury that reflected the injury was chronic. However, as determined by the Court, the July 2016 VA ankle examination is inadequate because the examiner failed to address the Veteran's lay statements of continuous ankle symptoms since service. Salt Lake City VAMC treatment records illustrated the Veteran's initial left ankle injury occurred when he jumped and landed on his heel, hyperextending the foot. In September 2006, the injury onset was identified as 15 years prior to the date of treatment. Thereafter, treatment records consistently indicated the injury occurred more than 30 and/or 40 years ago. See e.g., Salt Lake City VAMC treatment records, dated December 22, 2015, January 26, 2016. During a July 2016 VA medical appointment, the Veteran was noted to deal with "chronic pain in his left ankle from a very bad sprain that he sustained some 40 years ago." See Salt Lake City VAMC treatment record, dated July 21, 2016. The physician reviewed the January 2016 MRI, noting it showed chronic ligamentous injuries involving anterior tibial-fibular, calcaneofibular, and anterior talofibular ligaments as well as flexor hallucis longus tendinopathy and tenosynovitis. The Veteran was diagnosed with chronic left ankle pain secondary to remote severe ankle sprain. Id. Notably, following the July 2016 VA appointment, the physician issued a letter, requesting special accommodations, due in part, to chronic ligamentous injuries in his left ankle from a prior accident that prevent him from bearing weight on the leg for extended periods of time or walking more than 300 yards. See Salt Lake City VAMC treatment record, dated July 22, 2016. Per the October 2019 Board Remand instructions, the Veteran underwent a VA examination in June 2020. The Veteran reported that he went to the military clinic after injuring his left ankle and it was diagnosed as a strain. He clarified that the scar on his ankle noted at separation was from a pre-service burn and not surgery, as he left the service with ankle pain. He then reported having persistent pain in the ankle with brief periods of daily exacerbation. The examiner indicated the Veteran's left ankle diagnoses were left lateral collateral ligament sprain since 1970 and flexor hallucis tenosynitis since 2016, also noting that both conditions and degenerative arthritis was found in a 2016 MRI. See VA ankle examination, received July 6, 2020. Having provided the nature and etiology of the Veteran's left ankle conditions, the examiner concluded without providing an opinion on causation. In October 2020 the same examiner who performed the June 2020 VA ankle examination provided a medical opinion addendum and opined the Veteran's left ankle arthritis would not be due to the in-service injury but would be exacerbated beyond the natural progression. Moreover, the examiner explained that the arthritis would have been at baseline prior to aggravation as the Veteran had a normal ankle at time of separation from service. Regarding the left ankle sprain, the examiner opined that the in-service sprain had apparently resolved in-service, as there were no other complaints noted until 2016. The examiner further explained that any joint that is injured will be weak and further injury is likely. Under the circumstances of this case, the Board concludes that service connection is warranted for the Veteran's left ankle disability, to include ostearthritis. In light of the July 2016 treatment record that reflects the Veteran's left ankle disability is secondary to chronic ligament injuries, the Board finds that the evidence is at least in relative equipoise with respect to the question of whether the Veteran's left ankle disability was caused or aggravated by his service-connected right knee disability. Providing a negative nexus opinion, the June 2020 examiner opined in an addendum opinion that the Veteran's in-service ligament injury appeared to resolve as there was no evidence of treatment until 2016. While the examiner is competent and credible, rendering the opinion after review of the Veteran's records and in conjunction with an in-person examination, the Board assigns limited probative weight, as the Veteran's contention of ankle pain since service was not addressed. Further, the Board finds the Veteran's reported history, statement, and testimony regarding on-going knee pain and instability during military service and thereafter are entitled to some probative weight. For the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a left ankle disability, to include osteoarthritis, is granted. 38 U.S.C. § 5107 (b). REASONS FOR REMAND The Board finds that additional development is required before adjudication of the final matters on appeal. 1. Joint Pain The Veteran testified he has non-specific joint pain, to include in the neck, back, knee, shoulder, wrists, and fingers from drinking contaminated water at Camp Lejeune. See April 2019 Board Hearing Transcript, at 4-5. The Board remanded the matter to the AOJ in October 2019 for further development, including VA examination. The examiner was asked to determine the nature and etiology of the Veteran's joint pain and provide an opinion on whether any diagnosed condition had its onset in service or is otherwise related to military service, including CLCW. The Veteran underwent VA examination in June 2020 for his neck, shoulder, back, and ankle. The examiner reviewed the Veteran's medical records in conjunction with the in-person examination and provided a negative etiology opinion on the issue of direct service connection in a June 2020 medical opinion and October 2020 addendum medical opinion. See June 2020 VA Medical Opinion, received July 6, 2020. As to the contention that the Veteran's joint pain was caused by CLCW exposure, a subject matter expert (SME) reviewed the Veteran's records and provided a negative etiology statement in a July 2020 medical opinion. See July 2020 VA Medical Opinion by Dr. R.S. The examiner found no studies that document arthritis or non-specific joint pain as a sequela to exposure to CLCW. However, the July 2020 SME medical opinion, does not show the examiner addressed whether the Veteran's other diagnosed disabilities, to include cervical spine strain, shoulder strain, rotator cuff tendonitis and thoracic spine wedge fracture, were related to CLCW exposure, as requested by the October 2019 Board Remand. Further, VA examination was not conducted for the Veteran's complaints of joint pain in the knee, wrists, and hands, due to CLCW exposure. In addition, a review of the June 2020 medical opinion and October 2020 addendum medical opinion indicates the examiner relied mostly upon the VA examination and opinion conducted in August 2016 and the October 2019 Board Decision to provide a negative nexus opinion. In light of the Court's vacatur and remand order, which found the August 2016 VA examination inadequate, another medical opinion addressing direct service connection is required for the Board to make a fully informed decision. 2. Dental Disability for the purposes of treatment The Board finds that compliance with prior Remand instructions is required prior to adjudication of service connection for treatment of a dental disability. In October 2019 the matter was remanded by the Board to the AOJ for referral to the appropriate VAMC and Veteran's Health Administration (VHA) for an eligibility determination, prior to the AOJ's adjudication of the claim for dental treatment. Remand is appropriate in order to instruct the AOJ to refer the claim to the VHA, which the regulation provides must make the initial determination on the claim, and will better ensure that the claim is addressed promptly and efficiently, as is consistent with the uniquely pro-claimant principles underlying the veterans' benefits system. Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013). In a January 2021 notification letter, the Veteran was advised to initiate an eligibility determination for dental treatment by contacting VHA. No response from the Veteran and/or action by VHA has been associated with the evidentiary file. Moreover, the record does not show that the AOJ referred the claim to VHA. Under these circumstances, the Board finds that another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the October 2019 Board remand instructions is warranted. The Board does note, however, that VA's duty to assist claimants is not always a "one-way street." In other words, a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193. Accordingly, the matters are REMANDED for the following action: 1. Send the Veteran a VCAA letter, informing him of the provisions of 38 U.S.C. § 1712 and of 38 C.F.R. §§ 3.381 and 17.161, particularly the criteria he must satisfy for VA outpatient dental treatment eligibility. Request the Veteran identify any outstanding post-service private or VA treatment records for his dental claim. All records obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Thereafter, refer the claim for dental treatment to the appropriate VAMC to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. If the VAMC determines the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA make a determination, then adjudicate the claim. 3. The AOJ should request a new VA examination from the same provider that conducted the June 2020 VA examination to determine the nature and etiology of the Veteran's joint pain of the knees, wrists, and hands. If the same examiner is not available, then schedule a new examination for the Veteran. The examiner must review the Veteran's claims file and a copy of this REMAND order before the examination and include a notation that a record review was performed. (a.) The examiner is advised that the Veteran is competent to report the onset of his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (b.) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any identified disability of the knees, wrists, and hands were incurred in, caused, and/or aggravated by active duty. (c.) If it is not possible to provide an opinion without speculation, the examiner should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. (d.) A complete written rationale must be provided for any opinion rendered. 4. Then, AOJ should request an addendum opinion from the same provider that conducted the June 2020 VA examination to determine the nature and etiology of the Veteran's joint pain of the neck, shoulders, and back, to include cervical spine strain, shoulder strain, rotator cuff tendonitis, degenerative arthritis of the spine, and thoracic spine wedge fracture. See June 2020 VA Examinations, received July 6, 2020. If the same examiner is not available, the request should be sent to the same provider that performed the VA examination requested above, in number 3. The examiner must review the Veteran's claims file and a copy of this REMAND order before the examination and include a notation that a record review was performed. (a.) The examiner is advised that the Veteran is competent to report the onset of his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason. (b.) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any identified disabilities of the neck, shoulders, and back, to include cervical spine strain, shoulder strain, rotator cuff tendonitis, degenerative arthritis of the spine, and thoracic spine wedge fracture, were incurred in, caused, and/or aggravated by active duty. See June 2020 VA Examinations, received July 6, 2020. (c.) If it is not possible to provide an opinion without speculation, the examiner should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion sought. (d.) A complete written rationale must be provided for any opinion rendered. 5. Next, the AOJ should request a subject matter expert opinion from Dr. R.S., the same examiner that provided the July 2020 VA medical opinion request to determine if any of the Veteran's diagnosed joint pain disabilities of the neck, back, knees, wrists, and hands are related to exposure from water contaminants at Camp Lejeune. The examiner must review the Veteran's claims file, including a copy of this REMAND order, and include a notation that a record review was performed. The examiner must opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any identified joint pain disabilities of the neck, back, knees, wrists, and hands were (1) caused by and (2) aggravated by exposure to Camp Lejeune water contaminants, to include drinking contaminated water. (b.) If it is not possible to provide an opinion without speculation, the examiner should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion sought. A complete written rationale must be provided for any opinion rendered. The examiner is asked to specifically address the Veteran's contention that his joint pain and/or arthritis must be due to CLCW because no one else is his family had the disability. See April 2020 Board Hearing Transcript, at 5-6. 4. After completion of the above and any additional development deemed necessary, the issues on appeal must be readjudicated. If the claim remains denied, the Veteran and his representative must be provided a Supplemental Statement of the Case and afforded the opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.