I’ve never read one of these.I’ve seen combat Vets and medics get HCV SC with all number of drug issues. I’ve seen guys who deserved it get denied a bunch, too. But this is a new one. On top of the fact that the DAV is his VSO, they convinced him to withdraw an appeal for HCV in 2006 that he had two years invested in. Now he’s back refiling. His legal help is in cahoots with the VA, for crying out loud. Who ever heard of suing someone then throwing in the towel? And come back again 6 years later? Will they talk him into giving up again until the backlog is solved?

Citation Nr: 1221619
Decision Date: 06/21/12 Archive Date: 07/02/12

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1. Entitlement to an increased rating for chondromalacia patellae, status post debridement of the left knee, currently evaluated as 10 percent disabling.

2. Entitlement to an increased rating for chondromalacia patella, postoperative, right knee, currently evaluated as 10 percent disabling.

3. Entitlement to an increased rating for degenerative joint disease, right shoulder, currently evaluated as 10 percent disabling.

4. Entitlement to a separate compensable rating for residual scar, status post right shoulder arthroscopy.

5. Whether new and material evidence has been received with respect to a claim for service connection for hepatitis C.

6. Entitlement to service connection for hepatitis C.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

J. N. Moats, Counsel

INTRODUCTION

The Veteran had over 20 years of active service ending with his retirement in March 1995.

The issue of entitlement to service connection for hepatitis C comes before the Board of Veterans’ Appeal (Board) on appeal from November 2006 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The remaining issues come before the Board on appeal from a May 2009 rating decision by the RO, which continued the already assigned 10 percent disability ratings for the left and right knees, and granted a temporary 100 percent evaluation based on surgical treatment necessitating convalescence for the right shoulder until April 1, 2008, and then continued the already assigned 10 percent disability rating.

The issue of service connection for hepatitis C was originally appealed from prior September 2004 and October 2004 rating decisions. The RO issued a statement of the case in February 2006 and a substantive appeal was received the following month. Nevertheless, in a July 2006 statement as well as at a RO hearing that same month, the Veteran withdrew his appeal of this issue. The following month, the Veteran filed a claim to reopen. Thus, the Board must determine whether new and material evidence has been received with respect to this issue in accordance with 38 C.F.R. § 3.156.

An appeal had also been perfected on the issue of entitlement to service connection for PTSD. However, this issue was granted in a December 2007 rating decision. As this was a full grant of the benefit sought on appeal, this issue is no longer in appellate status.

The underlying issue of entitlement to service connection for hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1. The Veteran’s service-connected chondromalacia patellae, status post debridement of the left knee, is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination or fatigue so as to limit flexion to 30 degrees or less or limit extension to 15 degrees or more, and without recurrent subluxation or instability, frequent episodes of “locking” and effusion into the joint or ankylosis.

2. The Veteran’s service-connected chondromalacia patella, postoperative, right knee, is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination or fatigue so as to limit flexion to 30 degrees or less or limit extension to 15 degrees or more, and without recurrent subluxation or instability, frequent episodes of “locking” and effusion into the joint or ankylosis.

3. The Veteran’s service-connected degenerative joint disease, right shoulder, is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination or fatigue so as to limit range of motion to the shoulder level.

4. The Veteran’s residual scar, status post right shoulder arthroscopy, is manifested by tenderness on examination.

5. In an October 2004 rating decision, the RO denied service connection for hepatitis C; the Veteran withdrew his appeal of this decision in July 2006.

6. The additional evidence received since the October 2004 rating decision denying the claim of service connection for hepatitis C relates to unestablished facts necessary to substantiate the claim.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability evaluation in excess of 10 percent for chondromalacia patellae, status post debridement of the left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5019, 5260, 5261 (2011).

2. The criteria for entitlement to a disability evaluation in excess of 10 percent for chondromalacia patella, postoperative, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5019 5260, 5261 (2011).

3. The criteria for entitlement to a disability evaluation in excess of 10 percent for degenerative joint disease, right shoulder, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5010, 5201 (2011).

4. The criteria for a separate evaluation of 10 percent, but no higher, for residual scar, status post right shoulder arthroscopy, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.118, Diagnostic Code 7804 (in effect prior to October 23, 2008).

5. The October 2004 rating decision denying the application for service connection for hepatitis C, became final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2011); 38 C.F.R. § 20.200, 20.201, 20.302 (2011).

6. The additional evidence presented since the October 2004 rating decision is new and material, and the claim for service connection for hepatitis C, is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011).

So he gets the 10% knick knack bone. But what’s wrong with this DAV picture? Why, the confounded nexus is missing. It’s as if his legal help, who do this for a living, set him up for a fall. They burned up 3-4 years of this fellows time and purposefully let him get all the way here to lose everything.  The VLJ didn’t fall for it and remands for a nexus. vA is going to give this lifer a big Christmas present – his very own vA-supplied nexus free of charge. You can be sure it won’t be from Dr. Bash either. This is a classic example of that fabled VSO help that was designed to help Vets “navigate the system with confidence in the capable hands of a Veterans Service Officer who is well-versed in the law.”

Accordingly, the case is REMANDED for the following actions:

1. The RO should schedule the Veteran for an appropriate VA examination with a medical doctor to ascertain the etiology of his currently diagnosed hepatitis C. All necessary tests should be conducted. 
The claims file must be sent to the physician for review and the examiner should be informed that Veteran’s duties as a combat medic during the first Gulf War have been conceded.

After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s hepatitis C is related to service, to specifically include the his duties as a combat medic. The examiner should also consider the Veteran’s contentions that he might have contracted the disease as a result of surgeries performed in service, to include a wrist surgery in 1985 at Fort Campbell, Kentucky. A complete rationale should accompany any opinion provided.
2. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above question has been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report.
3. Thereafter, and any additional development deemed necessary by the RO, the issue on appeal should be readjudicated under a merits analysis. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

I guess twenty plus years in the service is no panacea, nor is being a combat medic. One would think his type would be the last to think about cheating and looking for a free ride on the government’s dime. I misjudged him. He must be a goldbricker. VA has an 86% accuracy rate, remember? I can hear his rep: “Hey, come on, man. You won the 10% on the scar. Let’s go home and come back in six years. We can give it a fresh look and they’ll probably grant. For sure we can get you a pension then when, I mean, IF we lose. This hep thing is mighty skinny, you know”.