Citation Nr: 21029833 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-11 562 DATE: May 17, 2021 REMANDED Entitlement to service connection for a dental disability is remanded. Entitlement to service connection for hepatitis is remanded. Entitlement to a bilateral foot condition, to include bilateral pes planus, neuritis, and bursitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1979 to June 1979 and from December 1979 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 Board decision, the Board found that the Veteran had missed his scheduled hearing without cause and that no additional hearing was warranted. The Board also remanded these matters for additional development. The Board has recharacterized the Veteran's claims, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Initially, the Board notes that the Veteran is incarcerated. See July 2019 Bureau of Prisons Match. Incarcerated veterans "are entitled to the same care and consideration given to their fellow veterans." Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)). The United States Court of Appeals for Veterans Claims (Court) has cautioned "those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement." Id. The VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him or her the necessary examination at the closest VA medical facility. 38 U.S.C. § 5711. However, VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton, 8 Vet. App. at 191. The Board finds that the duty to assist has not been fulfilled. The record demonstrates that the Veteran was incarcerated on February [REDACTED], 2019 (before the April 2019 Board remand and the scheduling of new exams). See July 2019 Bureau of Prisons Match. In May 2020, the RO requested that examinations regarding hepatitis, a bilateral foot disorder, and a dental disorder be completed by a VA-contracted medical provider and informed the contractor the Veteran was in Washington County Correctional Facility. See May 2020 examination request. The Veteran was detained at Fort Knox County from February [REDACTED], 2019 to April [REDACTED], 2019 and then was transferred to Washington County Detention Center on April [REDACTED], 2019. See November 2019 Report of Incarceration. Twelve days after the examination request was submitted, the Veteran informed the RO that he had been transferred to Bledsoe County Correctional Complex. See May 2020 Correspondence. In September 2020, the VA-contracted medical examiner informed the RO that the exams had been canceled because the point-of-contact, K.C., at Bledsoe County Correctional Complex informed the contractor that they did not have the capability to perform a dental examination, conduct diagnostic testing, or complete laboratory testing for any outside provider or company. See September 2020 Exam Scheduling Request Clarification Response. After the initial exams were cancelled, the RO requested a different VA-contractor conduct the requested examinations regarding the Veteran's claims for hepatitis and a bilateral foot disorder but failed to reschedule a dental examination. See September 2020 VA examination request. Critically, the RO informed this new VA-contractor that the Veteran was in Washington County despite having been on notice that he was in Bledsoe County for several months. The day after requesting the examinations, the VA-contractor informed the RO that the incorrect examinations had been requested. In October 2020, the Veteran informed the RO that he had been relocated to Morgan County Correctional Complex. See October 2020 Change of Address. It is unclear what the result of the second VA-contracted examinations were, as no further notice is in the record. In December 2020, the RO contacted the Morgan County Correctional Complex medical clinic and requested that the correctional facility advise the VA as to whether the Veteran: 1) could be escorted to a VA medical facility for examination, 2) whether the Veteran could be examined at the correctional facility by VHA personnel or VBA contracted personnel, or 3) whether the Veteran could be examined at the correctional facility by a fee-based VHA contracted medical professional. See December 2020 VA Forms 21-0820. The correctional facility informed the RO that the hepatitis and foot examinations were not possible at that time. Id. Here, the RO failed in satisfying its duty to assist the Veteran, as the Morgan County Correctional Complex was not asked to perform any examination using their own medical personnel using a VA medical examination worksheet (Disability Benefits Questionnaire). See Bolton, supra. Thus, on remand the RO must comply with Bolton in requesting the Veteran's current correctional facility complete the examinations as ordered in the April 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). If the RO cannot arrange for the examinations, it must document its substantial efforts to do so in the claims file. The RO should also obtain available medical evidence from the above-named correctional facilities and any other outstanding VA or private treatment records. 1. Entitlement to service connection for a dental condition is remanded. The Veteran asserts that his current dental disability either had its onset during his active duty service. In this regard, the Board notes that the Veteran's enlistment examination is silent as to any missing teeth or dental concerns. See October 1979 Enlistment Report of Medical Examination (RME). In May 1981, the Veteran was seen for dental lesions. The Veteran had teeth removed in February 1983, April 1983, May 1983. See Service Treatment Records (STRs). At his August 1983 separation examination, the Veteran's teeth were noted to be "acceptable." In December 2011, VA dental providers noted the Veteran was missing all of his teeth and issued the Veteran a set of dentures. In May 2012, the RO referred the Veteran to the VHA for dental treatment purposes. See May 2012 VA Form 10-7131. As noted in the April 2019 Board remand, compensation is not warranted for replaceable teeth. However, the evidence of record is insufficient to indicate whether the loss of teeth during service has resulted in impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla, which are compensable dental conditions. See 38C.F.R. §4.150. Notably, the Veteran reported that his left cheek bone was broken and required surgical repair in 1989. See December 1992 Social Security Administration (SSA) records. Accordingly, as noted above, an examination is warranted on remand. Regardless of the RO's ability to schedule the examination while the Veteran is incarcerated, a medical opinion regarding the Veteran's dental disorders must be obtained on remand. Any outstanding relevant government or private treatment records must also be obtained. 2. Entitlement to service connection for hepatitis is remanded. The Veteran asserts that his hepatitis (both type B and type C) had their onset during his active duty service, to include as being due to a tattoo that he received while stationed in Panama. In this regard, the Veteran's enlistment Report of Medical Examination (RME) in October 1979 only notes a burn scar on the Veteran's lower right leg and his August 1983 separation RME notes a tattoo on his right pectoral muscle. Hepatitis is noted to be clinically inapparent or have mild flu-like symptoms during its initial onset. See Dorland's Illustrated Medical Dictionary (30th Ed. 2003) at 837. The Veteran was treated for vomiting and stomach pain in June 1982. See STRs. He was treated for headaches, nausea, and dizziness with abdominal tenderness in February 1983. Id. After his release from active duty in 1983, the Veteran reported initially being diagnosed with hepatitis types B and C in July 1994. See October 1994 SSA records. The Veteran submitted to a VA examination February 2016 and in concluding the Veteran's hepatitis C was not related to the Veteran's in-service tattoo, the VA examiner relied on the multiple tattoos visibly apparent on the Veteran at that time as a possible source of the Veteran's hepatitis infections and speculated regarding the Veteran's polysubstance abuse. The Board notes that in January 1995, after the Veteran had a confirmed diagnosis of hepatitis, a Tennessee Department of Corrections medical practitioner noted the only tattoo present on the Veteran's body was a tattoo on his right chest, the same as the one noted on his August 1983 separation examination. See SSA records. Accordingly, the February 2016 VA examiner's opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). As noted above, a new examination is warranted per Stegall. Regardless of the RO's ability to schedule the examination while the Veteran is incarcerated, a medical opinion regarding the Veteran's hepatitis infections must be obtained on remand. Any outstanding relevant government or private treatment records must also be obtained. 3. Entitlement to a bilateral foot condition, to include bilateral pes planus and plantar fasciitis, is remanded. The Veteran assert that his bilateral foot condition, to include pes planus and neuritis, had their onset during his active duty service or were otherwise aggravated by his active duty service. In this regard, the Board notes that the Veteran's October 1979 enlistment RME noted a diagnosis of mild pes planus. If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). The Veteran bears the burden of showing that the pre-existing condition worsened in service. See Wagner, 370 F.3d 1089. Until the Veteran shows an increase in disability occurred in-service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id.; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). While on active duty, the Veteran complained of pain on pronation in September 1980 and in July 1983, the Veteran was treated for foot pain and painful callosities on the bottom of his left foot. See STRs. Otherwise, while on active duty, the complaints surrounding his feet appear to be related to repeated ingrown toenails and onychomycosis. After his release from active duty, the available medical evidence does not demonstrate any complaints of foot pain until June 2004 when the Veteran was treated for soreness over the metatarsal pads after excessive walking. See June 2004 VA treatment records. In January 2012, VA treatment providers obtained imaging of the Veteran's feet based upon his complaints of pain. A review of that imaging by a VA treatment provider revealed that there were no significant bony or soft tissue abnormalities, no fracture, and no other significant inflammatory or arthritic changes. See January 2012 VA treatment records. The VA examiner specifically noted at that time that there was no hallux valgus or significant pes planus. Id. In March 2012 he was diagnosed with bilateral neuritis at the medial calcaneal nerve with right foot bursitis and was administered a steroid injection. See March 2012, April 2012 VA treatment records. In August 2012, the Veteran submitted a lay statement reporting that he began to experience pain and trouble with his feet in service and that it has continued to the present. The Board notes the Veteran is competent to report symptoms, such as pain in his feet, as such symptoms are easily recognizable to the layperson and the Board has no reason to doubt his credibility in this regard. Accordingly, as noted above, an examination is warranted on remand. Regardless of the RO's ability to schedule the examination while the Veteran is incarcerated, a medical opinion regarding the Veteran's bilateral foot disorders must be obtained on remand. Any outstanding relevant government or private treatment records must also be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. With any necessary assistance from the Veteran, obtain all outstanding relevant government treatment records from correctional facilities located in Washington County, Bledsoe County, and Morgan County, Tennessee. 4. Then, schedule the Veteran for a dental examination to determine the nature and etiology of any dental disorders. The RO should, if the Veteran is still incarcerated, request that the correctional facility to which the Veteran is assigned allow him to be escorted to a VA medical facility for examination by VHA personnel. If the Veteran's temporary release for escorted examination is not possible, then seek to have the Veteran examined at the correctional facility by either: VBA contracted examination providers, VHA personnel, fee-basis providers contracted by the VHA, or by contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets. The entire claims file should be made available to the examiner. All findings should be reported in detail. If it is not possible to schedule an in-person examination, the RO must refer the claims file to a VA dental examiner for the preparation of an etiological opinion. (a.) Following a review of the claims file, and all evidence obtained during the examination if held, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that any diagnosed dental disorder for VA compensation purposes had its onset during the Veteran's active duty service or is otherwise related to his active duty service to include the treatment of dental lesions in May 1981 and removal of teeth in February 1983, April 1983, and May 1983. A complete rationale must be provided for all opinions expressed. If unable to opine, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to opine is based on the limits of medical knowledge. 5. Then, schedule the Veteran for an examination of his liver and gastrointestinal system to determine the nature and etiology of his diagnosed hepatitis B and/or C. The RO should, if the Veteran is still incarcerated, request that the correctional facility to which he is assigned allow the Veteran to be escorted to a VA medical facility for examination by VHA personnel. If the Veteran's temporary release for escorted examination is not possible, then seek to have the Veteran examined at the correctional facility by either: VBA contracted examination providers, VHA personnel, fee-basis providers contracted by the VHA, or by contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets. The entire claims file should be made available to the examiner. All findings should be reported in detail. If it is not possible to schedule an in-person examination, the RO must refer the claims file to a VA examiner for the preparation of an etiological opinion. (a.) Following a review of the claims file, and all evidence obtained during the examination if held, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that any diagnosed hepatitis infection either had its onset during the Veteran's active duty service or is related to the right pectoral tattoo he received in Panama. In answering this question, the examiner must address the following: 1. the Veteran's June 1982 complaints of vomiting and stomach pain; 2. the February 1983 complaints of tenderness in the abdomen accompanied by headaches, dizziness, and nausea; 3. the Veteran's report of being positive for both hepatitis B and C in July 1994 (See SSA records); 4. the fact that the Veteran only had the right tattoo chest he received in Panama at the time of his initial hepatitis diagnosis (see January 1995 SSA records containing Tennessee DOC records); 5. the September 1995 diagnosis of liver disease; 6. the Veteran's history of polysubstance abuse. A complete rationale must be provided for all opinions expressed. If unable to opine, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to opine is based on the limits of medical knowledge. 6. Then, schedule the Veteran for an examination of his feet to determine the nature and etiology of any diagnosed foot disorder, to include pes planus, neuritis, and bursitis. The RO should, if the Veteran is still incarcerated, request that the correctional facility to which he is assigned allow the Veteran to be escorted to a VA medical facility for examination by VHA personnel. If the Veteran's temporary release for escorted examination is not possible, then seek to have the Veteran examined at the correctional facility by either: VBA contracted examination providers, VHA personnel, fee-basis providers contracted by the VHA, or by contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets. The entire claims file should be made available to the examiner. All findings should be reported in detail. If it is not possible to schedule an in-person examination, the RO must refer the claims file to a VA examiner for the preparation of an etiological opinion. The examiner should address the following: (a.) Please diagnose all foot disorders present since June 2012, to include pes planus, neuritis and bursitis. (b.) For each disorder diagnosed in part (a) other than pes planus, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such foot disorder or had its onset during or is otherwise etiologically related to his active duty service, to include as a result of the cumulative impact of the Veteran's duties as an infantryman in the Army March 1979 to June 1979 and from December 1979 to September 1983. (c.) Regarding pre-existing pes planus (see October 1979 enlistment examination), please opine whether there is clear and unmistakable (undebatable) evidence that any increase in pes planus during service was due to the natural progress of the disease.: In answering this question, the examiner must address the following: (a.) the October 1979 enlistment examination noting mild pes planus at the Veteran's entry onto active duty; (b.) the September 1980 complaint of pain on pronation; (c.) the complaints of foot pain throughout the STRs; (d.) the July 1983 complaint of painful feet and painful callosities on the bottom of the Veteran's left foot; (e.) the August 1983 separation examination noting abnormal feet; (f.) the June 2004 complaints of soreness of both feet over the metatarsal pads due to excessive walking; (g.) the March 2012 diagnosis of bilateral foot neuritis; (h.) the April 2012 diagnosis of right foot bursitis and bilateral neuritis of the medial calcaneal nerve; and (i.) the Veteran's August 2012 lay statement that he has had pain and trouble with his feet since his service in Panama that has continued to the present. In answering these questions, the examiner must accept item (i.) as true, even though objective documentation or treatment records may not be available for review. Then, please state whether a nexus between the Veteran's bilateral foot disorders and service is medically consistent with the symptomatology reported by the Veteran in item (i.) above. A complete rationale must be given for all opinions and conclusions expressed. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should provide a rationale for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.