Citation Nr: 1751720 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-02 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a groin disability. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. 4. Entitlement to service connection for a respiratory disability, to include asthma and chronic obstructive pulmonary disease (COPD). 5. Entitlement to an evaluation in excess of 20 percent for hepatitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION The Veteran had active service from May 1976 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. During the pendency of the appeal, a February 2016 rating decision increased the rating for the Veteran's hepatitis disability to 20 percent effective May 14, 2009, the date the Veteran filed his claim for an increased rating. Since this evaluation is not the maximum available benefit and the claimant has not withdrawn the appeal, the issue remains in appeal status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board has re-characterized the issue of entitlement to service connection for asthma to more broadly encompass entitlement to service connection for a respiratory disability, to include asthma and COPD. The law provides that VA must broadly consider claims and when a Veteran asserts service connection, he does so for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). After reviewing the contentions and evidence, the Board determines that the issue of entitlement to service connection for asthma should be re-characterized and is more accurately stated as listed on the title page of this decision. The case was remanded in June 2014 and October 2015 for evidentiary development. All actions ordered by the remand have been accomplished. Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The Veteran's back disability was not incurred in service. 2. The Veteran does not have a current groin disability. 3. The Veteran's depression is not related to service. 4. The Veteran does not have a current diagnosis of PTSD. 5. The Veteran does not have a current diagnosis of asthma. 6. The Veteran's COPD was not incurred in service. 7. During the appellate period, the Veteran's hepatitis manifested with fatigue and nausea, but did not manifest with minor weight loss, hepatomegaly, or incapacitating episodes of at least four weeks. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for a groin disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. The criteria for a disability rating in excess of 20 percent for hepatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.114, Diagnostic Code (DC) 7345 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Back disability The Veteran's May 1976 report of medical history at induction indicates the Veteran denied recurrent back pain. His clinical spine and musculoskeletal evaluation was normal. His July 1979 reenlistment examination indicates a normal clinical evaluation. In May 1980, the Veteran had a motor vehicle accident while stationed in Italy. On the October 1980 report of medical history at discharge, the Veteran reported arthritis and recurrent back pain. The examiner noted the Veteran reported occasional back pain after the motor vehicle accident. His clinical examination was normal. There are no other complaints, diagnoses or treatments for a back disability in service. At the December 2013 VA medical examination, the Veteran reported back pain since the in-service motor vehicle accident. The examiner noted the Veteran has congenital lumbar spinal stenosis of the L1-L5 vertebrae. However, he also noted the Veteran was shot in the back while working at a gas station in 1990, which resulted in at least one bullet fragment remaining near his spine. The examiner also noted the Veteran fell down stairs while carrying a mattress in 2010, which resulted in herniated discs. The Veteran underwent lumbar spine fusion surgery in September 2013, which included the removal of the herniated discs and a bone graft. The examiner opined the Veteran's current back disability was less likely than not related to the Veteran's in-service motor vehicle accident because the Veteran's current back problems "occurred in 2010 when he fell and sustained slipped discs that required lumbar spine fusion." The preponderance of the evidence is against service connection for a back disability. The probative medical evidence indicates the Veteran's current back disability was not incurred in service, but rather related to post-service back injuries. Since the Veteran's current back disability was not related to service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Groin disability The Veteran's May 1976 report of medical history at induction indicates the Veteran denied piles or rectal disease, frequent or painful urination, bed wetting, blood, sugar or albumin in urine, or any venereal diseases. His clinical anus and rectum examination was normal. His July 1979 reenlistment examination indicates a normal clinical evaluation. Service treatment records indicate the Veteran reported scrotal pain after the May 1980 motor vehicle accident. He was diagnosis with a groin contusion, resolved. His physical profile (PUHLES) was temporarily amended to reflect his groin contusion. On his October 1980 report of medical history at discharge, the Veteran denied any testicular conditions. His clinical evaluation was normal. There are no other complaints, diagnoses, or treatments of a groin disability or a testicular condition in service. At the December 2013 VA medical examination, the Veteran reported he had a vasectomy in 1981. He did not report any other complaints, diagnoses or treatments of testicular issues. The examiner noted the Veteran's physical examination was normal and that he had "normal genitalia." No diagnosis of a groin disability or a testicular condition was given. The preponderance of the evidence is against service connection for a groin disability. The probative medical evidence indicates the Veteran does not have a current groin disability. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim."). Since the Veteran does not have a current diagnosis of a groin disability or a testicular condition, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). C. Acquired psychiatric disability Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125. The provisions of 38 C.F.R. § 4.125 (a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's Diagnostic and Statistical Manual, Fifth Edition (DSM-V). However, with respect to this provision, the Board notes that the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) is still applicable for claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the Veteran's claim was certified in March 2014 and can therefore be considered under either DSM-IV or DSM-V. The Veteran's May 1976 report of medical history at induction indicates he denied frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. His clinical psychiatric evaluation was normal. In June 1979, the Veteran began a detoxification rehabilitation program, which included individual and group counseling sessions and treatment with Antabuse. In August 1979, the Veteran reported stress related to personal and financial issues. He was diagnosed with situational depression. In June 1980, he was diagnosed with sociopathic behavior related to alcoholism. In October 1980, he was diagnosed with immature personality and alcoholism. His October 1980 report of medical history at discharge indicates the Veteran reported frequent trouble sleeping, and depression and excessive worry, but denied nervous trouble of any sort. His examiner noted the Veteran's depression and sleep disturbances were secondary to his divorce. His clinical psychiatric evaluation was normal. There are no complaints, diagnoses or treatments of a psychiatric disorder post-service in the record. The Veteran reported at his August 2014 Board hearing that he was hospitalized in 1981 after attempting suicide. At the November 2013 VA medical examination, the Veteran reported feeling depressed after being shot in the back in 1990. He also reported sleep problems, lack of interest in socialization, frequent tearfulness, and lack of motivation and decreased energy. The Veteran reported a history of alcohol abuse but that he had been sober for the last 13 years following two treatment rehabilitation programs. He reported he was not under any treatment for depression. The examiner diagnosed the Veteran with major depressive disorder. The Veteran reported his PTSD stressor was the May 1980 motor vehicle accident. The examiner noted the Veteran's reported stressor met the criteria for a diagnosis of PTSD, but that the Veteran's overall symptoms did not meet the DSM-IV criteria for a PTSD diagnosis. The examiner also noted the Veteran's depression was related to the 1990 gas station attack that resulted in the Veteran being shot in the back. The examiner opined the Veteran's current depression was not related to the Veteran's military service, including the Veteran's in-service motor vehicle accident. The preponderance of the evidence is against service connection for a psychiatric disability. The probative medical evidence indicates the Veteran does not have a current diagnosis of PTSD, and that the Veteran's depression is not related to his military service, but rather to post-service events. Since there is no evidence the Veteran's current psychiatric disability is related to service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). D. Respiratory disability On his May 1976 report of medical history at induction, the Veteran denied having sinusitis, hay fever, asthma, shortness of breath, pain or pressure in his chest, or a chronic cough. His clinical lungs and chest evaluation was normal. In June 1977, the Veteran complained of a wheezing cough and nasal congestion. He was assessed with an upper respiratory infection and treated with medication. In January 1978, the Veteran complained of a sore throat, productive cough, congestion and rhinorrhea. He was assessed with probable pneumonitis and treated with medication. In June 1978, the Veteran complained of a wheezing cough, and was assessed with bronchitis, post-hepatitis treatment. He was treated with medication, and advised to stop smoking. In November 1979, the Veteran complained of chest pain, coughing and a slight temperature. He was assessed with an upper respiratory infection and treated with a nasal spray. At the Veteran's July 1979 reenlistment examination, the Veteran's clinical examination was normal. A notation of abnormal sinuses indicated a history of rhinitis. On his October 1980 report of medical history at discharge, he denied having sinusitis, hay fever, asthma, or shortness of breath, but reported that he did have pain or pressure in his chest, and a chronic cough. His clinical evaluation noted normal lungs and chest, with abnormal sinuses due to allergic rhinitis. The examiner also noted the Veteran's chest discomfort and persistent cough were secondary to the Veteran's cigarette smoking habit. At the December 2013 VA medical examination, the Veteran reported a diagnosis of COPD in 2007 with intermittent inhalational bronchodilator therapy treatment. The examiner noted the Veteran had a 50-year history of smoking a pack of cigarettes a day. The examiner did not note a diagnosis of or treatment for asthma. The examiner opined the Veteran's COPD was less likely than not incurred in service. He noted the Veteran had COPD because of his long-standing cigarette smoking habit. The preponderance of the evidence is against service connection for a respiratory disability. There is no probative medical evidence indicating the Veteran has a current diagnosis of asthma. In addition, the Veteran's current COPD is less likely related to the Veteran's in-service episodes of rhinitis, and more likely related to his 50-year history of smoking a pack of cigarettes a day. Since there is no evidence linking the Veteran's respiratory disability to service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104 (a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's hepatitis C is rated 20 percent disabling under 38 C.F.R. § 4.114, DC 7345. DC 7345 provides for a noncompensable rating for non-symptomatic hepatitis. A 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). According to Note 2 of DC 7345, an "incapacitating episode" is a period of acute signs and symptoms that require bed rest and treatment by a physician. VA treatment records indicate the Veteran completed a 25-week hepatitis C treatment program in June 2010. Subsequent follow up visits to the gastroenterology clinic were negative for complaints. In June 2012, the Veteran tested negative for hepatitis C and was informed he had "cleared the virus." At the February 2016 VA medical examination, the Veteran reported daily fatigue and intermittent nausea, with no incapacitating episodes in the past 12 months. An ultrasound conducted at the examination noted a normal liver without a solid or cystic mass. The examiner noted no other significant diagnostic test findings or results, and that the Veteran's disability did not have a functional impact on his ability to work. The examiner noted the Veteran did not have near constant debilitating symptoms or any incapacitating episodes in the past 12 months. The Board finds that the Veteran's hepatitis C most closely approximates a 20 percent rating. A rating of 40 percent is not warranted because the Veteran's disability did not demonstrate with minor weight loss, hepatomegaly or incapacitating episodes of at least four weeks during the past 12 months. ORDER Service connection for a back disability is denied. Service connection for a groin disability is denied. Service connection for an acquired psychiatric disability is denied. Service connection for a respiratory disability is denied. Entitlement to a rating in excess of 20 percent for hepatitis C is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs