Citation Nr: 21030434 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-38 248 DATE: May 18, 2021 REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for cirrhosis of the liver is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for bilateral flat feet is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from August 1974 to August 1980 and February 1981 to February 1984 with service at Camp Lejeune. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's substantive appeal in July 2016 included a request for a Board hearing. However, on his behalf, his representative withdrew the hearing request in April 2019. Thus, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(e) (providing that a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing). Therefore, the Board will proceed with appellate review based on the evidence of record. 1. Entitlement to service connection for hepatitis C is remanded As to the claim of service connection for hepatitis C, the medical evidence demonstrates that the Veteran has a diagnosis of hepatitis C and that his hepatitis C may be associated with a history of gonorrhea. See GI Clinic Note dated in March 2000. Moreover, an August 1980 service medical examination shows a history of gonorrhea, suggesting he incurred gonorrhea during his military service. Given the above, the Board finds that a remand is required to provide the Veteran with a VA examination to obtain for the first time a needed medical opinion evidence as to whether the Veteran's post-service hepatitis C is due to his military service. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this regard, when providing the requested etiology opinion the examiner should take into account, among other things, that the record shows that the Veteran had military service at Camp Lejeune during the period in which there were known contaminants in the water supply at Camp Lejeune (see 38 U.S.C. § 501(a); 38 C.F.R. § 3.307(a)(7)), and although hepatitis C is not one of the conditions listed as a presumptive disorder, the examiner should nonetheless consider whether his hepatitis C is directly related to his exposure to contaminants in the water at Camp Lejeune. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the availability of presumptive service connection for a disability does not preclude a Veteran from establishing service connection with proof of direct causation). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). 2. Entitlement to service connection for cirrhosis of the liver is remanded As to the claim of service connection for cirrhosis of the liver, the Veteran claims it is due to his hepatitis. Moreover, the record not only shows the Veteran has a diagnosis of cirrhosis of the liver, but a May 2005 medical note opines that the etiology of the cirrhosis appears to be hepatitis C and alcohol use. Therefore, the Board finds that the claims of service connection for cirrhosis of the liver is intertwined with the issue of service connection for hepatitis C. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Wallin v. West, 11 Vet. App. 509, 512 (1998); Ward v. Wilkie, 31 Vet. App. 233 (2019). As such, the issue of entitlement to service connection for cirrhosis of the liver must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 3. Entitlement to service connection for a left knee disability is remanded As to the claim of service connection for a left knee disability, a Physical Therapy Note dated in July 2009 documented the Veteran's report that that he started getting left knee pain after getting injections for hepatitis last year. Moreover, the Board finds that the July 2009 note suggests that his left knee pain may be related to his treatment for hepatitis C and associated cirrhosis of the liver. See ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record); Also see 38 C.F.R. § 3.310. In fact, the connection between the problem with his left knee and his treatment for hepatitis C and cirrhosis of the liver is supported by a February 2017 medical note which reveals that the Veterans knees began to swell after taking a dose of propranolol. Therefore, the Board finds that the claim of service connection for a left knee disability is intertwined with the claim of service connection for hepatitis C and cirrhosis of the liver. See Harris, supra. Moreover, the Board finds that this record places on VA a duty to provide the Veteran with a VA examination to obtain needed medical opinion evidence as to whether the Veteran had a chronic left knee disability, as opposed to transient pain and swelling, due to his treatment for hepatitis C and cirrhosis of the liver. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c); McClendon, supra. 4. Entitlement to service connection for bilateral flat feet is remanded As to the claim of service connection for bilateral flat feet, the medical records reveal a current diagnosis. Moreover, service treatment records include an August 1980 examination both noted a history of foot trouble and a history of flat feet. Given the above, the Board finds that a remand is required to provide the Veteran with a VA examination to obtain for the first time a needed medical opinion evidence as to whether the Veteran's post-service bilateral flat feet is due to his military service. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c); McClendon, supra. The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding pertinent VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the Veteran's claims of service connection for hepatitis C, cirrhosis of the liver, and a left knee disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnoses for all liver and left knee disorders to include hepatitis C and cirrhosis of the liver. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hepatitis C, cirrhosis of the liver, and/or any left knee disability was caused by the Veteran's military service to include due to gonorrhea and his presumptive contaminants in the water supply at Camp Lejeune. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hepatitis C, cirrhosis of the liver, and/or left knee arthritis manifested in the first post-service year. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cirrhosis of the liver was caused by his hepatitis C. e. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cirrhosis of the liver was aggravated by his hepatitis C. f. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any chronic left knee disorder was caused by his hepatitis C and/or cirrhosis of the liver to include the medication he takes to treat his hepatitis C and cirrhosis of the liver. g. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any chronic left knee disorder was aggravated by his hepatitis C and/or cirrhosis of the liver to include the medication he takes to treat his hepatitis C and cirrhosis of the liver. In providing answers to the above questions the examiner should consider and discuss the service treatment records that, among other things, document the Veteran's complaints and/or treatment for gonorrhea and left knee problems. In providing answers to the above questions the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to the above questions regarding the Veteran's left knee disorder being related to his hepatitis C and/or cirrhosis of the liver, the examiner should specifically consider and discuss the post-service treatment records that show his having problems with left knee pain and swelling after being treated for his hepatitis C and/or cirrhosis of the liver. In providing answers to the above questions regarding the Veteran's hepatitis C and/or cirrhosis of the liver being due to his presumptive contaminants in the water supply at Camp Lejeune while on active duty, the examiner should not use the fact that neither is a presumptive disorder as evidence against finding in-service incurrence. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion the examiner should be aware of the facts that the Court held in Ward v. Wilkie, 31 Vet. App. 233 (2019) that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to any inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the Veteran's claims of service connection for bilateral flat feet. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that bilateral flat feet was caused by the Veteran's military service. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that bilateral flat feet manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss the service treatment records that, among other things, document at an August 1980 examination a history of foot trouble and a history of flat feet. In providing answers to the above questions the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to any inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.