Citation Nr: 1406491 Decision Date: 02/12/14 Archive Date: 02/24/14 DOCKET NO. 07-05 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C with liver dysfunction. 2. Entitlement to service connection for a heart disability, to include as due to asbestos exposure and/or hepatitis C with liver dysfunction. 3. Entitlement to service connection for a low back disability, to include as due to asbestos exposure and/or hepatitis C with liver dysfunction. 4. Entitlement to service connection for a bilateral leg disability, to include as due to asbestos exposure and/or hepatitis C with liver dysfunction. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from August 1976 to May 1977. These matters come before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. These matters were before the Board in September 2008, August 2009, August 2011, and most recently in December 2012, when the Board remanded them development consistent with a Joint Motion for Remand (JMR). The Board finds that there has been substantial compliance with its remands. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran is less than credible with regard to the onset dates of his hepatitis C, heart disability, low back disability, and leg disability. 2. The Veteran was diagnosed with hepatitis C in approximately 1998, more than 20 years after separation from service. 3. The Veteran has a history of IV drug use and cocaine abuse. 4. The most probative evidence of record is against a finding that the Veteran has hepatitis C causally related to, or aggravated by, active service. 5. The earliest clinical evidence of hypertension or a heart disability is more than 15 years after separation from service. 6. The most probative evidence of record is against a finding that the Veteran has a heart disability casually related to, or aggravated by, active service. 7. The earliest clinical evidence of a post service back disability is more than 10 years after separation from service. 8. The most probative evidence of record is against a finding that the Veteran has a low back disability causally related to, or aggravated by, active service. 9. The earliest clinical evidence of a bilateral leg disability is more than 10 years after separation from service. 10. The most probative evidence of record is against a finding that the Veteran has a bilateral leg disability causally related to, or aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 3. The criteria for service connection for low back disability have not been met. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 4. The criteria for service connection for a bilateral leg disability have not been met. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Notice was provided to the Veteran in July 2005, September 2005, April 2006, October 2008, and December 2012. The claim was subsequently readjudicated in supplemental statements of the case. Mayfield, 444 F.3d at 1333. VA also has a duty to assist the Veteran in the development of the claims. The claims file includes service treatment records (STRs), VA and private clinical records, Social Security Administration (SSA) records, and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty. The claims file includes an August 2013 VHA opinion on the above stated issues. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that an adequate opinion has been obtained. The opinion provides an adequate rationale based on the Veteran's history and clinical findings. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen v. Principi, 7 Vet. App. 439 (1995), which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). Service-connection for asbestos-related diseases There are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Hepatitis C with liver dysfunction The Veteran initially averred that he has hepatitis C due to exposure to contaminated needles during active service. The Veteran stated that in February 1977, while serving in Korea, he was given shots on a "few different times." He contends that the same needle was used on over 100 soldiers. The Board has also considered possible exposure due to sexual encounters and tattoos in service. An essential element of a claim for service connection is that there must be evidence of a current disability. The claims file includes a 1998 medical record which reflects that the Veteran has hepatitis C. Thus, for purposes of this decision, the Board finds that this element has been met. The Veteran had nine months of active service. He has alleged several possible etiologies for his hepatitis; he multiple sex partners while stationed for approximately four months in Korea, tattoos in service, and immunization with non-sterile needles. The Veteran also has a history of illegal drug use, to include IV heroin and nasal cocaine use. The Veteran's STRs are negative for any complaints of, treatment for, or diagnosis of hepatitis. An October 1976 medical history (Med Form 276) reflects that the Veteran stated that he had never been treated for hepatitis (yellow jaundice) or venereal disease. The Veteran's April 1977 report of medical examination for separation purposes (Chapter 5) reflects that the Veteran had tattoos on the left and right arms and forearms, the chest, the back, and the chin. The Veteran's April 1977 report of medical history for separation purposes reflects that he denied ever having had jaundice, hepatitis, or venereal disease. Post service, the evidence reflects that the Veteran reported heroin use, LSD use, marijuana use, and cocaine abuse. (See February 2011 VA examination report). In 2011, he denied any use in the last 11 years. Thus, his abuse was prior to 2000. A September 1997 record, noted below, also reflects a history of crack cocaine use. Private treatment records show an assessment of hepatitis C in May 1998. During a January 2010 VA examination of the liver, the Veteran indicated that he was first diagnosed with hepatitis C while in prison in 1991, but also indicated that there was some evidence of hepatitis C as early as 1987 when he developed yellow jaundice. The Veteran indicated that he did not have any treatment for his hepatitis C while in prison from 1991 to 2000 as no treatment was indicated. The Board finds, for the reasons noted below, that the Veteran is less than credible with the initial diagnosis or symptoms of hepatitis. A June 1993 Texas Department of Criminal Justice Medical History report reflects a negative history for hepatitis or liver disease. The Board finds that this is probative evidence that the Veteran did not have a diagnosis of hepatitis C prior to 1993, especially as the Veteran has reported an initial diagnosis in a correctional facility. If the Veteran had a diagnosis, it would be reasonable for it to be reflected in this medical history report. A March 1997 Texas Department of Criminal Justice clinical record reflects a diagnosis of hypertension. It is negative for any reference to hepatitis C. A September 1997 Texas Department of Criminal Justice clinical record reflects a history of coronary artery disease (CAD) and hypertension. It notes a long history of tobacco abuse and crack cocaine abuse ($100/day). It is negative for any reference to hepatitis. A December 1997 University of Texas Medical Branch Hospital record reflects that the Veteran had hypertension and CAD. It is negative for any mention of hepatitis. A March 1998 Texas Department of Criminal Justice clinical record reflects hypertension. It is negative for any reference to hepatitis. A May 1998 Texas Department of Criminal Justice Master Problem list reflects a diagnosis of hepatitis C with an onset date of May 1998. A September 1998 Texas Department of Criminal Justice clinical record reflects that the Veteran had hepatitis C. It was noted that he was completely asymptomatic. Notably, subsequent Texas Department of Criminal Justice records reflect diagnoses of hepatitis C, in addition to the previously noted CAD and hypertension. (See February 1999, April 1999, July 1000, and October 1999 records). Based on the foregoing, the Board finds that the Veteran was initially diagnosed with hepatitis in 1998, and that he is less than credible with regard to earlier diagnoses. Thus, the initial diagnosis was more than twenty years after separation from service. The claims file includes an August 2013 clinical opinion. The clinician noted that hepatitis C is spread by contact with contaminated blood. She also stated that there is no evidence to support droplet or fecal modes of dissemination of the virus. The clinician considered the Veteran's risk factors for hepatitis C and stated that although the Veteran engaged in prostitutes during his deployment to Korea, the medical literature provides no evidence to support the transfer of the virus by any bodily fluid other than blood. Moreover, she stated that although the Veteran contends that he contracted the virus through immunizations with non-sterile needs, this contention is unsubstantiated. According to the clinician, the military used standard sterilization methods during the Veteran's time in service. The clinician also considered the Veteran's tattoos and stated that it is possible to contract hepatitis through tattoos; however, the Veteran's prolonged use of IV drugs and cocaine use pose the greatest risks. Therefore, it is less likely as not that the Veteran's hepatitis is causally related to, or aggravated by, his military service. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds that the above stated opinion is probative of the issue. The opinion reflects that the clinician reviewed the pertinent information and considered the Veteran's allegation. Although the Veteran contends that non-sterilized needles were used for over 100 soldiers at a time, the Board finds that there is no credible evidence to support such. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The clinician, who has training in medical issues, is more competent than the Veteran to attest to sterilization practices routinely used in the military in the 1970s. The Board also notes that the Veteran's STRs include an Immunization Record. It notes various shots in August 1976 and September 1976. It is negative for any shots in February 1977 (The Veteran has claimed inoculations in February 1977.) Moreover there is no competent credible evidence of record that the shots in 1976 were administered in a non-sterile environment which allowed for the Veteran to be exposed by blood contaminated by hepatitis C. The Veteran's accredited representative, in an October 2013 brief, contended that the clinician relied on an inaccurate factual premise with regard to sexual activities in service. The representative stated that VA has made a "factual finding" that "high-risk" sexual activity is a risk factor for Hepatitis. (See VA training letter TL 01-02 (17 April 2001). However, the training letter specifically notes that the risk of getting hepatitis through "high risk sexual activity" is a "relatively low" risk. In addition, VA has held that hepatitis C can only be spread through contact with infected blood. As noted above, the Veteran contends that he had several sexual encounters while in Korea; however, he has not indicated that any such activities involved blood transmission. In addition, his STRs are negative for any venereal diseases. His April 1977 report of medical examination reflects that his serology test for RPR (rapid plasma reagin) (a screening test for syphilis) was negative. Finally, the Veteran denied having ever had a venereal disease on his April 1977 report of medical history for separation purposes. The absence of a venereal disease is evidence against a finding of high-risk sexual activity. In addition, the accredited representative contended that the clinician did not provide an adequate rationale as to why IV and cocaine use provide a greater risk than tattooing and high-risk sex. The clinician has the experience, training, and education necessary to make such a statement. In addition, she cited to several sources to support her conclusions with regard to hepatitis. The Board notes that hepatitis C is defined as "hepatitis c virus, the most common form of post-transfusion hepatitis, it also follows parenteral drug abuse . . ." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). Thus, the Board finds that the opinion is adequate and the supported by medical literature. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. See 38 C.F.R. § 3.301(d) The Veteran's STRs are negative for use of IV drugs or cocaine use. The SSA records reflect that the Veteran reported that he first used heroin in Korea; however, the Veteran also initially reported to the examiner that he was in active combat in Korea. (The Veteran served in Korea in 1977, more than twenty years after the end of combat in Korea); thus, the Veteran is less than credible to the circumstances of his service. In addition, the Veteran, in a handwritten statement, reported that he had not previously used IV drugs when he returned to the states from Korea. See Cartright, 2 Vet. App. at 25; see also Caluza, 7 Vet. App. at 510-511. In the present case, the Veteran's STRs and service personnel records are negative for any findings of IV drug use. The Veteran has alleged that when he came back to the United States, he was told that he had hepatitis; however, testing for hepatitis C was not available until approximately 1991, more than 13 years after he left service. Moreover he has tested negative for hepatitis A and B; thus, the evidence does not support a finding that he was informed of some other type of hepatitis. In addition, the clinical records prior to May 1998 reflect diagnoses of other disabilities, but are negative for any diagnosis of hepatitis C. The earliest clinical evidence of hepatitis C is in 1998. The Veteran did not file a claim for hepatitis until 2005. If the Veteran had been told by several doctors, shortly after service, that he had hepatitis, and if he had not been using IV drugs at that time, as he claims, and if he believed that it was due to inoculations in service, it would have been reasonable for him to have filed a claim earlier than 2005. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of hepatitis C. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau, 492 F.3d at 1377 n.4. Based on the foregoing, the Board finds that service connection is not warranted. The evidence is not of such approximate balance as to warrant the doctrine of giving the benefit of the doubt to the appellant. 38 U.S.C.A. § 5107;38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Heart disability The Veteran avers that he has a heart disability due to service, to include asbestos exposure, and/or hepatitis C. The claims file includes medical records which reflect that the Veteran has coronary artery disease (CAD). Thus, the Board finds that this element has been met. As discussed above, the Veteran is not service-connected for hepatitis C; thus, he cannot be service-connected for a disability causally related to, or aggravated by, it. Regardless, the clinical evidence below is against a finding of service connection on any basis. The Veteran contends that he was in Korea in 1977 and was in a buildings that contained asbestos. (See October 2005 VA Form 21-4138). The Veteran's STRs are negative for a heart disability. His July 1976 report of medical examination for enlistment purposes, and his April 1977 report of medical examination for separation purposes, reflect a normal heart. The reports also show normal blood pressure readings of 128/82 (July 1976) and 110/60 (April 1977). In an April 1977 report of medical history, the Veteran denied "heart trouble" and denied "high of low blood pressure." Any contention by the Veteran that he had hypertension in service is less than credible given the clinical records. A June 1993 x-ray report from Dr. R. Hardy reflects that an x-ray of the chest revealed "no acute cardiopulmonary process can be identified. The heart and was within normal limits." A June 1993 Texas Department of Criminal Justice record reflects a personal history of high blood pressure, but a denial of a history of heart disease or angina. Another record from approximately 1993 or 1994 reflects a history of hypertension for one year. The record is undated; however, it reflects that the Veteran was 38 years old. Thus, it was in 1993 or 1994. A March 1997 Texas Department of Criminal Justice record reflects a diagnosis of hypertension. It also notes anterior lateral ischemia. A September 1997 Texas Department of Criminal Justice record reflects a history of, and diagnosis of, CAD, and stable hypertension. It notes that an EKG in 1993 showed ischemia. A May 1998 Texas Department of Criminal Justice Master Problem List reflects onset of hypertension in June 1993, and a diagnosis of CAD. Thus, the evidence reflects that the Veteran was diagnosed with a heart disability in approximately 1993 and CAD in approximately September 1997. The Board acknowledges that the Veteran, in a February 2011 VA examination, reported that he was diagnosed as having a heart attack when he was incarcerated in 1986; however, based on the evidence noted above, the Board finds that the Veteran is less than credible with regard to this date. The claims file includes an August 2013 clinical opinion. The Board acknowledges that the clinician stated, and the Board had previously noted in its request for an opinion, that the Veteran was diagnosed with CAD in December 1997. However, upon further review the record reflects a diagnosis date of September 1997, and ischemia in 1993. The Board finds that the difference is de minimis given the more than 15 years since separation from service and given the clinician's rationale. The clinician stated, in pertinent part, as follows: The medical literature reports that the major causes of CAD include smoking, hypertension, dyslipidemia, and diabetes. Other established risk factors for atherosclerotic cardiovascular disease include genetics, obesity, and lack of physical activity. There is no confirmation of a direct pathogenic link between Hepatitis C and myocardial injury. In addition, one study by Kobayashi et al failed to demonstrate diffuse distribution of asbestos bodies beyond the pulmonary and alimentary tract. Therefore, it is less likely as not that the Veteran has a heart disability causally related to, or aggravated by his hepatitis C or alleged asbestos exposure. The evidence reflects that in September 1997, the Veteran had a history of smoking and was a 20 pack years smoker. In addition, the records reflect that at age 39 (approximately 1993 or 1994), the Veteran was obese. He also had hypertension. Thus, the clinician's opinion has support in the evidence. The Board also notes that the Veteran's military occupational specialty (MOS) was a stock control supply man or a stock clerk. A stock clerk is not listed by VA as an occupation which has a higher risk of asbestos exposure. In addition, the evidence of record does not reflect that the mere presence in a building which contains asbestos causes, or aggravates, a heart condition. Moreover, there is no evidence of record that the Veteran has a heart disability related to some other aspect of service. The Veteran's accredited representative, in an October 2013 brief, contended that the examiner failed to consider a 2011 and 2012 study with regard to asbestos. The examiner need not discuss every study done with regard to asbestos in order to make an informed and adequate opinion. The one study cited by the representative deals with British asbestos workers and occupational exposure; this does not apply to the Veteran. The other study cited by the representative deals with the potential for asbestos to produce diseases of the peritoneum, immune, gastrointestinal (GIT), and reproductive systems; this does not pertain to the Veteran's claim for a heart disability. Moreover, neither article deals with a person who has contended that his only exposure to asbestos is the presence in a building which may have contained asbestos. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of diseases of the heart. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana 24 Vet. App. at 435; See Jandreau, 492 F.3d at 1377. In sum, there is no competent credible evidence of record that the Veteran has a heart disability causally related to, or aggravated by, service (to include asbestos and/ or herbicide exposure) or a service-connected disability. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Low back disability The Veteran's STRs reflect that in December 1976, he complained of low back pain. He was diagnosed with a strain. In January 1997, he complained of vomiting and back pain for three days. It was noted that he had pain in the thoracic spine. The diagnosis was gastroenteritis. Subsequent STRs in March and April 1977 are negative for complaints of the back, but rather, note complaints of the feet. The Veteran's April 1977 report of medical history for separation purposes reflects that the Veteran denied recurrent back pain, although he noted cramps in the legs. His spine was noted to be normal upon clinical examination. The Board finds that any back complaint in December 1976 was acute and transitory as the Veteran did not seek follow up treatment, and importantly, he denied recurrent back complaints in April 1977. Moreover the January 1976 complaint was related to gastroenteritis, and noted only three days of back pain, not since the December 1976 incident. A June 1993 Texas Department of Criminal Justice record reflects that the Veteran reported a back injury in 1990. An April 2005 clinical record reflects that the Veteran reported a history of a back injury playing football, "believe it was a disk out of place." The claims file includes an August 2013 clinical opinion. The clinician, stated in pertinent part, as follows: It is a matter of record that the Veteran suffered a soft tissue injury to his back during his military service, as well as back discomfort associated with gastroenteritis. His separation exam is silent for a chronic back condition. It is unlikely that there was any bony or disc injury since he returned to duty within a short period of time. The veteran reports a back injury in 1990 of unknown cause or severity. There is also a report of a football injury. The Veteran has been diagnosed with mild degenerative changes of L2-5 and Mild L5-S1 degenerative disc disease. Arthritis and DDD are regarded as consequences of the normal process of aging. This process may be accelerated by smoking, obesity, and heavy physical work. A nexus cannot be established between the Veteran's minor back injury during service and his current low back condition. In addition, Bartolome et al found that the 'Hepatitis C virus does not infect muscle, intervertebral disk, or the meniscus in patients with chronic Hepatitis C.' these findings provide no basis for a Hepatitis C mediated aggravated[.] As indicated above, Kobayashi et al failed to demonstrate diffuse distribution of asbestos bodies beyond the pulmonary and alimentary tract. Therefore, it is less likely as not that the Veteran's low back condition is causally related to, or aggravated by, his Hepatitis C or possibly asbestos exposure. In an October 2013 brief, the Veteran's accredited representative contended that the clinician did not cite to any studies regarding soft tissue injuries and arthritis or degenerative disc disease. The representative also stated that the statement as to the Veteran returning to duty within a short period of time was a generalized statement. The Board finds that the clinician, who has the training, experience, and education in medical issues is competent to provide an opinion with regard to the amount of time usually necessary to recuperate from injuries. In addition, the STRs support the clinician's findings and opinion. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. The Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of a back disability more than a decade after separation from service, asbestos, and hepatitis C. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana, 24 Vet. App. at 435; See Jandreau, 492 F.3d at 1377. The earliest post service clinical evidence of a back disability is in 1993, when the Veteran claimed having had an injury in 1990, more than ten years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Any statement by the Veteran as to chronic pain since service is less than credible given the clinical records. In sum, there is no competent credible evidence of record that the Veteran has a back disability causally related to, or aggravated by, service (to include asbestos and/ or herbicide exposure) or a service-connected disability. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Bilateral leg disability The Veteran's STRs are negative for treatment for his legs. The Veteran's STRs reflect that the Veteran sought treatment for corns and calluses of the feet in March and April 1977. On his April 1977 report of medical history for separation purposes, the Veteran reported that he had, or had previously had, foot trouble and cramps in his legs. The physician's summary and elaboration of all pertinent data reflects "foot trouble - corn." The April 1977 report of medical examination for separation purposes reflects that upon clinical examination, the Veteran's lower extremities were normal. It was noted that his feet had calluses on "both little toes." A June 1993 Texas Department of Criminal Justice reflects that the Veteran reported having had a gunshot wound to the right leg in 1990. The report is negative for any mention of an injury in service, or of chronic pain since service. An April 2005 correctional facility record reflects that the Veteran had a bullet wound to the right knee. A May 2005 correctional facility record reflects that the Veteran reported a history of being shot three times in the right leg. He further reported that he has problems standing for long periods of time. The record reflects two scars on the upper right thigh and one scar on the right medal knee and right popliteal fossa. Upon VA examination in January 2010, the Veteran indicated that his primary care physician, Dr. F.H., had mentioned to him having pressure readings in lower leg areas and that he wanted to have a repeat vascular evaluation done. On physical examination, the January 2010 VA examiner noted a bruit over the left groin area. The impression was "weak pulses noted with bruit of the left lower extremity, particularly with suspected peripheral vascular disease." Upon VA orthopedic examination in February 2011, the Veteran complained of pain in the left calf with walking. Upon examination, the examiner diagnosed the Veteran with degenerative arthritis of the right knee and strain of the left knee. An August 2011 VA clinical report reflects the opinion of the clinician that "it is less likely than not that foot problems and leg cramps are related to leg problems secondary to DJD of the spine." The Veteran has previously reported being shot three times in the right leg (post-service), he has scars from injuries on the leg, and he now has complaints of the right leg (degenerative arthritis) and a strain of the left knee. The claims file includes an August 2013 clinical opinion. The clinician, stated in pertinent part, as follows: The Veteran's STRs document treatment for corns and callouses. On his separation physical he reported foot trouble and leg cramps. Corns and callouses are skin conditions caused by friction, not Hepatitis C. It is most likely that the leg cramps the Veteran experienced during his military service were acute, transient, and related to exercise. Current Left cramps are related to vascular occlusion, while those experienced during service were muscle cramps due to overuse. The Veteran's corns and callouses, as well as leg cramps, that occurred during his service were certainly not caused or aggravated by Hepatitis C or possible exposure to asbestos. On the Veteran's January 2010 exam, he was found to have a bruit over his L groin and a weak left lower extremity pulses thought to be related to PVD. He described L lower leg cramps consistent with intermitted claudication. As documented above, neither Hepatitis C nor asbestos has been linked to muscle, bone, disc, or meniscus disorders. It is noted that the Veteran suffered a gunshot wound to his R knee, which is responsible for his degenerative arthritis of that joint. There is no medical evidence to support a lower back disability causes a knee condition or a knee condition causes a low back condition. As discussed previously, Hepatitis C and asbestos exposure have not been implicated in the development of atherosclerotic vascular disease. Smoking has been identified as the leading cause of this condition. In the October 2013 brief, the Veteran's accredited representative stated that the opinion was inadequate because the clinician did not opine as to whether the Veteran's leg disability was aggravated by service. As the Veteran did not have the current leg disability in service, it could not logically have been aggravated by service. Thus, a further opinion is not necessary. The earliest clinical evidence of a bilateral leg disability is more than a decade after service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson, 230 F.3d at 1333. In addition, there is no evidence of PVD in service, or of any chronic injury in service. The evidence reflects that the Veteran was shot in the right leg numerous times after service, and has PVD. The Board finds that any statement by the Veteran that he has had bilateral leg pain since service is less than credible given the clinical records. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. The Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of hepatitis C, asbestos, muscle cramps, and PVD (peripheral vascular disease). The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana, 24 Vet. App. at 435; See Jandreau, 492 F.3d at 1377. In sum, there is no competent credible evidence of record that the Veteran has a bilateral leg disability causally related to, or aggravated by, service (to include asbestos and/ or herbicide exposure) or a service-connected disability. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102 but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for hepatitis C with liver dysfunction is denied. Entitlement to service connection for a heart disability, to include as due to asbestos exposure and/or hepatitis C with liver dysfunction is denied. Entitlement to service connection for a low back disability, to include as due to asbestos exposure and/or hepatitis C with liver dysfunction is denied. Entitlement to service connection for a bilateral leg disability, to include as due to asbestos exposure and/or hepatitis C with liver dysfunction is denied. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs