Citation Nr: 1640487	
Decision Date: 10/13/16    Archive Date: 10/27/16

DOCKET NO.  12-23 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2.  Entitlement to an initial compensable rating for bilateral hearing loss.

3.  Entitlement to an initial compensable rating for right elbow chip and scar.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Williams, Counsel



INTRODUCTION

The Veteran served on active duty from October 1968 to September 1972. 

This matter is before the Board of Veterans' (Board) on appeal from rating decisions dated in November 2010 and February 2011 of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In the November 2010 rating decision, the RO granted service connection for bilateral hearing loss, evaluated as noncompensable, effective July 12, 2010, and denied service connection for hepatitis C.  In the February 2011 rating decision, the RO granted service connection for a right elbow chip condition, evaluated as noncompensable, effective July 12, 2010.  According to the corresponding substantive appeals, the Veteran requested a Board hearing via videoconference.  The hearing was scheduled for April 2014; however, the Veteran failed to appear and did not show good cause or otherwise request that it be rescheduled.  Therefore, the Veteran's hearing request is considered withdrawn.  Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record.  See 38 C.F.R. § 20.704 (d) (2015). 

The Veteran has changed representatives during the pendency of the appeal.  Initially, he was represented by the Colorado Department of Veterans Affairs. Subsequently, he appointed the American Legion as his representative.  The American Legion is recognized as the current representative.

This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The issues of entitlement to an initial compensable rating for bilateral hearing loss and an initial compensable rating for right elbow chip and scar are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran had risk factors for contracting hepatitis C during active service, including high-risk sexual activity.


CONCLUSION OF LAW

The criteria for service connection for hepatitis C have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015)


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  The claim for service connection for hepatitis C is granted; therefore, any deficiency in the duty to notify and assist is nonprejudicial.  

Service Connection Law and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In this case, hepatitis C is not a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 at 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  It may also include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 

Analysis

The Veteran contends that his hepatitis C is due to military service.  Specifically, he contends that he acquired hepatitis C when he was inoculated with vaccines while in the Navy in 1968.  See September 2012 VA examination report.

The September 2012 VA examination report confirms that the Veteran has a current diagnosis of hepatitis C.  Thus, a current disability is present. 

Service treatment records reflect that the Veteran had foreign assignments in the Navy including in southeast Asia.  According to the September 2012 VA examination report, the Veteran reported that he has had multiple sexual partners and has had unprotected sex.  The examiner also noted that the Veteran's service treatment records show multiple visits for urethritis after unprotected sex when he was stationed in Southeast Asia.

In the September 2012 VA examination report, the examiner was asked to opine whether the Veteran's hepatitis C is related to service.  The examiner stated that it is at least as likely as not that the Veteran acquired his hepatitis C infection from sexual contact while stationed in Southeast Asia.  He noted that the Veteran's hepatitis C is genotype 3 and that genotype 3 is noted to be most prevalent in the Indian subcontinent, Southeast Asia, and Indonesia.  The examiner also addressed the Veteran's contentions, noting that air gun inoculations devices are not considered a known risk factor for the transmission of hepatitis C.  He added that if the Veteran had acquired the virus from other Navy service members by means of a blood transfer via the air gun inoculator, it is most likely that he would have acquired genotype 1.  Therefore, he opined, it is not at least as likely that the Veteran acquired hepatitis C infection by means of the air gun.

The Board find that service connection for hepatitis C is warranted light of the September 2012 VA examiner's opinion that it is at least as likely as not that the Veteran acquired his hepatitis C infection from sexual contact while stationed in Southeast Asia.  Therefore, the claim is granted.


ORDER

Service connection for hepatitis C is granted.


REMAND

Increased rating claims

The Veteran is seeking initial compensable ratings for his service-connected bilateral hearing loss and right elbow condition.  The Veteran's last VA Audio examination was conducted over six years ago in October 2010, and at that time the Veteran had not been issued hearing aids.  According to a September 2012 VA treatment records, it was noted that the Veteran was recently tested by a non-VA audiologist and records were submitted prior to that day.  It was also stated that the Veteran met the criteria for hearing aids.  Thus it appears that the Veteran's disability may have worsened since the October 2010 VA audio examination.  

The Veteran's elbow was last examined in January 2011.  At that time his range of motion was reported was noncompensable and he was noted to have a scar.  Subsequently, in a June 2011 statement the Veteran reported experiencing an uncomfortable pain in his elbow.  Thus it appears that the Veteran's elbow disability may have worsened since the January 2011 VA examinations.  

The Court of Appeals for Veterans Claims has held that where the Veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted).  Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected disabilities, contemporaneous examinations are warranted, with findings responsive to the applicable rating criteria.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").  

Regarding the right elbow disability, the Board also finds that the January 2011 VA Joints examination is inadequate for rating purposes.  Specifically, VA regulations provide that joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. 38 C.F.R. § 4.59.  While the VA examiner recorded the Veteran's range of motion, the report does not specifically state whether testing in accordance with this VA regulation was performed, and is therefore ambiguous on whether this level of testing was done.  In light of the deficiency, another VA compensation examination is needed.

Treatment records

As the record reflects that the Veteran has received continuing treatment at VA, any outstanding and current ongoing VA medical records should also be obtained.  As discussed above, VA treatment records refer to a private audiology testing record submitted by the Veteran.  Any records previously submitted by the Veteran should be associated with the Veteran's electronic record in VBMS.  After obtaining any necessary authorization, all outstanding records from any identified outside providers must be obtained and associated with the claims file.  VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  See 38 U.S.C.A. § 5103A(b)(1) (West 2014); 38 C.F.R. § 3.159(c)(1) (2015); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations for such records, to include the audiology report referred to in September 2012 VA treatment record.  If the Veteran responds, all reasonable attempts should be made to obtain such records.  If any records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession.  All attempts to secure this evidence must be documented in the record by the AOJ. 

2.  Then associate with the record any of the Veteran's outstanding VA treatment records dated since September 2012. 

3.  Then schedule the Veteran for VA audiological evaluation that addresses bilateral hearing loss.  

The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination.  Any indicated diagnostic tests and studies must be accomplished.  All pertinent symptomatology and findings must be reported in detail.  

Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000 and 4000 Hertz, provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test.  The examiner, in addition to dictating objective test results, must fully describe the functional effects caused by the Veteran's bilateral hearing loss. 

4.  Schedule the Veteran for VA Joints and Skin examinations to assess the current severity of his right elbow chip and scar.

The entire claims file must be made available to the examiner, and the examiner must specify in the examination report that the entire record has been reviewed.  Any indicated diagnostic tests and studies must be accomplished.  All pertinent symptomatology and findings must be reported in detail.  

Ensure that the examiner provides all information required for purposes of rating the Veteran's right elbow disability, to include a description of the effects of the elbow disability on the Veteran's occupational functioning and daily activities. 

After physically evaluating the Veteran, the examiner must:

a)  Provide range of motion and repetitive motion findings in degrees for the right elbow.  A goniometer should be used in conjunction with range of motion testing.  Test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

b)  State whether there is objective evidence of pain on range of motion and after repetitive motion testing.  If so, provide the degrees at which pain begins and ends. 

c)  State whether the right elbow exhibits weakened movement, excess fatigability, or incoordination. 

d)  Provide an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right elbow is used repeatedly over a period of time.  If so, provide the degree of additional range of motion loss due to pain on use or during flare-ups.  

e)  Discuss whether the Veteran's right elbow disability is productive of any additional functional impairment.

f)  For any related scars, the examiner should report the location and size (length and width measured in inches or square centimeters) of the scar.  The examiner should report whether the scar is deep (associated with underlying soft tissue damage) or superficial; causes limited motion; unstable (frequent loss of covering over the scar); painful; or causes limitation of function of the affected part.  The examiner should report the area affected by the scar in square inches or centimeters.  

5.  Then, the AOJ should readjudicate the increased rating claims.  If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs