Citation Nr: 22008083 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 10-20 286 DATE: February 11, 2022 REMANDED The issue of service connection for hepatitis, to include as secondary to the Veteran's service-connected bilateral foot disabilities (hallux valgus, plantar callosities, and left foot scar) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision from a Department of Veterans Affairs (VA) regional office (RO). The Board remanded this matter in August 2020. The RO issued a supplemental statement of the case (SSOC) in October 2020. The matter is before the Board again. The Veteran had a hearing in October 2016 before a Veterans' Law Judge (VLJ) that has since retired. He declined the option for another hearing before a VLJ in November 2021. A transcript of the 2016 hearing is part of the record. The issue of service connection for hepatitis, to include as secondary to the Veteran's service-connected foot disabilities is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: This is a remand under Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Additionally, the VA has not fulfilled its duty to assist the Veteran in obtaining relevant records. In August 2020, the Board ordered the RO to obtain an opinion as to whether the Veteran's hepatitis was due to his service or secondary to a service-connected disability. The October 2020, an opinion did not adequately address the issue of whether the Veteran's drug abuse, which led to hepatitis was related to the Veteran's foot pain in service. The examiner did not express an opinion about whether the Veteran used drugs alleviate the pain in his feet. It did not consider whether this was consistent with the course and severity of the Veteran's medical conditions at the time. Further, there are outstanding relevant records. The Veteran reported treatment for his foot at the Fort Benning Medical Center. His sister provided a statement that she visited him after he received treatment there for a foot problem in either 1973 or 1974. Inpatient records are stored separately from service treatment records, and no attempts have been made to obtain the Veteran's inpatient records from the Fort Benning Medical Center in 1973 to 1974. Thus, a remand is necessary to assist the Veteran in obtaining treatment records from the Fort Benning Medical Center. THE REMAND DIRECTIVES FOLLOW. 2. Obtain records of any inpatient treatment at the Fort Benning Medical Center from 1973 to 1974. Document all requests for information as well as all responses in the claims file. 3. RETURN THIS MATTER TO THE EXAMINER WHO CONDUCTED THE OCTOBER 2020 VA EXAMINATION FOR A FILE REVIEW. If the examiner is not available, have the record reviewed by an equally qualified PHYSICIAN. Ask the examiner to review the evidence and express a fully explained opinion as to whether the veteran's drug abuse was to alleviate the pain caused by his foot injuries. IN DOING SO, THE EXAMINER MUST STATE WHETHER THE VETERAN'S STATEMENTS ABOUT USING DRUGS FOR THE PAIN IN HIS FEET ARE CONSISTENT WITH THE SEVERITY OF THE INJURY, THE COURSE OF TREATMENT, AND THE TYPE OF DRUGS ABUSED. If it is not possible to provide a specific opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must review the record as found in VA treatment reports and the electronic file. However, the record in substance indicates the following: The Veteran served on active duty from November 1972 to July 1974. In January 1974, the Veteran received treatment for a callus on the ball and toe of his feet. In July 1974, the Veteran tested positive for hepatitis and heroin use. In a treatment session in October 1990, the Veteran reported that he abused drugs for a few years, stopping in 1974. The Veteran was diagnosed with bilateral hammer toes and hallux valgus in July 1990. He had a bunionectomy in October 1990. A November 1990 treatment note indicated the Veteran's defense mechanisms included self-numbing, to include drug and alcohol abuse. He reported pain in his right foot in September 1993 and bilaterally in April 1994. A deformity was noted in the second digit in his right foot in 1994. He received treatment for right foot calluses in March 1996. In August 2008 the Veteran was noted as having a flail toe and it was amputated in January 2009. The Veteran stated in a May 2009 notice of disagreement that he was treated for foot problems in 1973. A May 2011 letter from the Veteran's sister states she visited him in either 1973 or 1974 at the Fort Benning Medical Center after he received treatment for his toes. February 2013 treatment notes indicate a history of hammer toes in both feet starting in 1972. At his October 2016 hearing, the Veteran alleged that his issued military boots did not fit during service. He reported his toes were balled up and his skin was coming off. He stated he began using drugs in-service to relieve pain in his feet. (CONTINUED ON THE NEXT PAGE) 4. The RO will then readjudicate the claim of service connection for hepatitis, to include as secondary to service-connected foot disabilities. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, Counsel The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.