Citation Nr: 1756610 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-10 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to a compensable rating prior to February 5, 2014 and an increased rating in excess of 10 percent since that date for otitis externa. REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1967 to February 1970. These matters come to the Board of Veterans' Appeals (Board) from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. The Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge in February 2014. The transcript is of record. FINDINGS OF FACT 1. The Veteran's hepatitis C was not incurred in or caused by active service. 2. The Veteran's chronic otitis externa has been characterized by swelling, serous discharge, and itchiness requiring frequent and prolonged treatment for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have not been met. 38 C.F.R. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for a 10 percent rating, but no higher, for the entire period on appeal for chronic otitis externa have been met. 38 C.F.R. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.87, Diagnostic Code 6210 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail. On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). ISSUE 1: Service Connection for Hepatitis C Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The first recorded suspicion that the Veteran had any form of hepatitis was an August 1980 medical note stating that a follow up was needed to rule out hepatitis. This was more than a decade after service. In December 2007, the Veteran wrote that he was stationed in Germany. He reported being exposed to blood from a friend that was shot, sharing razor blades with fellow soldiers, having air gun vaccinations, and frequenting prostitutes. The Veteran also claimed that he had a strain of hepatitis that was uncommon in the United States. The Veteran reported that the hepatitis C had been detected in 2002, but that he had not been diagnosed until 2006 or 2007. The Veteran testified in February 2014 that he believed that he was exposed to hepatitis C by air gun inoculation, or otherwise possibly due to blood from when his friend was shot, sharing razor blades, or frequenting prostitutes. The Veteran testified that he was diagnosed with hepatitis C sometime in 2006 or 2007. VA examined the Veteran in February 2015. The examiner noted that the Veteran's liver function tests were normal from 1992 to 2005. A positive hepatitis C antibody test was noted in October 2002. At that time, it was asymptomatic and liver function tests were normal. The examiner also noted that the Veteran had been an extensive drug user and had medical notes from the 1980s that stated the Veteran admitted to using "anything I could get my hands on." The Veteran also stated at the examination that after service he "did a lot of drugs and a lot of women", but he denied injecting drugs. The examiner opined that the post-service drug-use and sexual promiscuity were the most significant hepatitis C risk factors and that coupled with the absence of symptoms until years later it was less likely than not that the Veteran's hepatitis C was related to service. In August 2017, pursuant to 38 C.F.R. § 20.901 (a), an expert medical opinion was provided by the director of the hepatitis C program in a VA Medical Center in Texas. The physician was board certified in infectious diseases and internal medicine. The examiner discussed each of the methods by which the Veteran had suggested he could have contracted hepatitis C during service, including exposure to the blood of the wounded, vaccine inoculation with air gun, sharing razors and toothbrushes, and sexual activity. The examiner referenced epidemiological studies that found that the traumatic blood exposure, air gun inoculation, and sharing razors and toothbrushes were not supported transmission vectors. The examiner further opined that sexual transmission from the prostitute visits in Germany was extremely unlikely. Accordingly, the examiner opined that the Veteran less likely than not contracted hepatitis C while in service. In addition, the examiner noted that the records indicated that the Veteran was taking multiple drugs including heroin and cocaine during the 1970s including by intravenous methods. Per the epidemiological studies, the Veteran had a very high risk of acquiring hepatitis C from only a few years of drug use: more than 50 percent and possibly as high as 80 percent. The weight of the evidence is against service connection. The August 2017 examiner provided a strong opinion against a nexus to service. This opinion is weighed heavily because it addressed the Veteran's potential infection routes with epidemiological studies showing they were unfounded or unlikely. In addition, the examiner is a well credentialed director of a hepatitis C clinic. His opinion is therefore weighed even more heavily. See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999) (the Board may favor the opinion of one competent medical expert over that of another provided the reasons therefor are stated). The examiner's opinion and evidence outweighs the Veteran's testimony on how he was infected with hepatitis. The 2017 examiner also opined that it was the Veteran's intravenous drug use after service that most likely exposed him to hepatitis C. The Veteran disputes using intravenous drugs. Even if the Veteran did not use intravenous drugs, however, the examiner's opinion that the Veteran did not at least as likely as not contract hepatitis C during service was rendered independently of whether the Veteran used intravenous drugs later. The examiner based his opinion about the likelihood of transmission from each of the Veteran's identified risk factors on epidemiological studies and his experience as a hepatitis C clinical director. The issue is not how the Veteran obtained hepatitis C, it is whether it was obtained from service. The examiner independently answered that question no. Moreover, the Veteran appears to have misremembered other facts in his testimony that puts his historical recollection into question. The Veteran testified that he did not use cocaine, but hospitalization records from 1974 and 1975 indicated that the Veteran was hospitalized for drug addiction, including to cocaine. The testimony that the Veteran never used intravenous drugs during the same time period is therefore not credible and does not weigh against the 2017 examiner's opinion. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for hepatitis C must therefore be denied. ISSUE 2: Increased Rating for Otitis Externa Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. Diagnostic code 6210 applies to chronic otitis externa. It provides a single rating at 10 percent requiring that the otitis externa require "swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment." The use of "and" indicates that all the criteria must be met. If the criteria are not met, then a non-compensable rating is appropriate. Because chronic otitis externa is listed in the schedule, consideration by analogy of apply other diagnostic codes is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015). The Veteran is rated 10 percent disabled for the period from February 5, 2014. Prior to that, the Veteran had a VA examination on November 2011. The examiner diagnosed chronic otitis externa and identified symptoms of serous discharge and itching, but not swelling. VA examined the Veteran prior to that in April 2008. That examiner noted itching (pruritus) that was constant, but no discharge, scales, or swelling. The examiner noted that the Veteran had one to three ear infections per year per ear. Other medical records indicated that the Veteran had regular bilateral itchiness of the ears, and intermittent serous discharge. However, the criteria require discharge, itching and swelling. In February 2014, the Veteran testified that during active infections he sometimes sees a doctor and they stated that he had swelling. He also testified that he would often self-medicate with antibiotic ear drops and simply not visit the doctors when he had active infections. The Veteran is competent to report diagnoses told to him by doctors. Swelling is also one of the most common symptoms of otitis externa, but would not necessarily appear during an examination if the Veteran did not have an active infection at that point in time. Giving the benefit of the doubt to the Veteran, swelling has at least as likely as not been established. The Veteran also has frequent and prolonged treatment as he has approximately six active infections a year that require courses of antibiotics. Accordingly, a 10 percent rating for the entire period on appeal is warranted. As 10 percent is the maximum rating provided, a higher schedular rating is not applicable. As mentioned above, because chronic otitis externa is specifically identified in the schedule, rating by analogy is also inappropriate. The Veteran has not requested a referral for an extra-schedular rating and the record does not independently raise the issue. Accordingly, it need not be considered. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) (referring to "the long-standing principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the claimant or reasonably raised by the record"). ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to a 10 percent disability rating, but no higher, for the entire period on appeal is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs