Citation Nr: 1802374 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-15 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of a left leg fracture. 2. Entitlement to service connection for osteoarthritis of the left hip, status-post total arthroplasty, claimed as secondary to residuals of a left leg fracture. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Jeff Blankenship, Attorney at law ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a May 2015 decision, the Board reopened and remanded the Veteran's claim of entitlement to service connection for residuals of a left leg fracture. The claims of entitlement to service connection for hepatitis C and a left total hip replacement were also remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denials in an April 2016 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. A broken left leg when the Veteran was fourteen years old, which resulted in a leg length discrepancy, was noted on the enlistment examination. The presumption of soundness therefore did not attach with regard to the Veteran's left leg. 2. The Veteran currently has residuals of a left leg fracture, including leg length discrepancy, which are due to aggravation of a condition that preexisted service. 3. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed osteoarthritis of the left hip, status-post total arthroplasty, is caused by his service-connected residuals of left leg fracture. 4. The Veteran does not have hepatitis C that had its onset in service or that is otherwise related to active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of left leg fracture, including leg length discrepancy, are met on an aggravation basis. 38 U.S.C. §§ 1111, 1131 (2012); 38 C.F.R. § 3.303, 3.304(b) (2017). 2. The criteria for entitlement to service connection osteoarthritis of the left hip, status-post total arthroplasty, on a secondary basis are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. Hepatitis C was not the result of disease or injury incurred in or aggravated by the Veteran's active military service. 38 U.S.C. §§ 105, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Pursuant to the May 2015 Board Remand, the Veteran was afforded VA examinations and a separate medical opinion in January 2016 as to the pending claims. The reports and opinion provided by the VA examiner reflects that he thoroughly reviewed the Veteran's past medical history and rendered findings that are responsive to the rating criteria. The Board therefore concludes that the January 2016 VA examinations and medical opinion are adequate and complied with the Board's remand instructions. See 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The Veteran and his attorney have raised no other 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). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C. §§ 1111, 1113 (2012); 38 C.F.R. § 3.304(b) (2017). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2017). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). a. Residuals of a left leg fracture In this matter, the Veteran asserts that he suffers from residuals of a left leg fracture, which were aggravated by his military service. See the Veteran's statements dated September 2010 and VA Form 9 dated April 2013. Initially, the Veteran's November 1976 enlistment examination noted that he had suffered a broken left leg when he was fourteen years old, which resulted in a leg length discrepancy. Accordingly, a left leg fracture pre-existed the Veteran's period of active duty service. 38 C.F.R. § 3.304(b). As the presumption of soundness does not apply, the Board must now determine whether the Veteran's pre-existing left leg lengthening underwent a worsening during service. See 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). For the reasons stated below, the evidence demonstrates that the Veteran's pre-existing left leg fracture underwent an increase in disability during his military service. As indicated above, the Veteran served on active duty from January 1977 to January 1978. Service treatment records (STRs) dated in January 1977 indicated that he had numbness in his left leg upon standing. STRs dated in March 1977 reported that the Veteran's left knee was swollen; he was diagnosed with a strained collateral medial ligament. STRs dated in June 1977 noted a diagnosis of musculoskeletal strain of the left leg. In July 1977, the Veteran reported left leg pain. The July 1977 STR also indicated that the Veteran's left leg was a little over an inch shorter than his right leg, and his hips were uneven. In October 1977, the Veteran reported persistent left leg and back pain. In a Report of Medical Board dated November 1977, it was noted that the Veteran suffered from left leg and back pain due to leg length inequality, which resulted from a 1972 automobile accident. The Report further indicated that the Veteran "is unfit for duty by virtue of a condition which existed prior to entry into service and which was aggravated by period of service." In a separate November 1977 Certificate Relative to a Full and Fair Hearing Before a Physical Evaluation Board, the Veteran signed a document in which he certified that the November 1977 Medical Board "found me to be unfit for further Naval service by reason of leg length inequality, a physical disability which existed prior to enlistment and which has not been aggravated by service." Private treatment records dated in July 2007 indicated that the Veteran was involved in a 1972 motorcycle accident, which resulted in a compound fracture of left tibia that eventually headed after bone grafts and vascular reconstruction. As a result of the fracture, the Veteran incurred a leg length discrepancy of one inch. A continuing diagnosis of status-post tibial fracture with vascular insufficiency, remote, was indicated. In a March 2013 letter, Dr. H.B. provided a detailed description of the Veteran's medical history. He then stated, "[a] report form the Medical Board, which oversaw his case, stated that, though [the Veteran] had a pre-existing condition of leg length inequality, this was aggravated by his service in the U.S. military and he was subsequently dismissed from his duties as a Marine." Pursuant to the May 2015 Board Remand, the Veteran was afforded a VA medical opinion in January 2016. The examiner stated that the Veteran's residuals of left leg fracture, to include leg length discrepancy, were not aggravated beyond their natural progression by an in-service event, injury, or illness. The examiner explained, "The Veteran entered military service in 1977 and he already had a leg discrepancy in the left leg due to a left leg fracture in 1972." The examiner stated that the Veteran developed osteoarthritis of the left hip, which necessitated surgery in 2007, 29 years after the Veteran's military service. The examiner opined, "This would be due to natural progression of having an antalgic gate from the leg discrepancy related to his pre-existing leg fracture. Therefore, it is less likely as not for the left leg fracture to have been aggravated by military service." In consideration of the evidence of record, including the Veteran's credible contentions, STRs, and private treatment records, as well as VA and private evaluation reports, the Board finds that the Veteran's pre-existing residuals of left leg fracture, to include leg length discrepancy, were aggravated by his active duty service, and the Veteran has a current disability related to this aggravation. A high evidentiary standard is required to rebut the presumption of aggravation and this is not met in the Veteran's case. As the presumption of aggravation is not rebutted, the Board concludes that service connection is warranted for residuals of left leg fracture, to include leg length discrepancy, based on in-service aggravation. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. b. Degenerative arthritis of the left hip, status-post total hip arthroplasty Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2017). Here, the Veteran asserts that he developed a left hip disability as a result of his left leg length discrepancy. As the Board has herein granted service connection for residuals of left leg fracture to include leg length discrepancy, the evidence now supports an award of service connection for the currently diagnosed left hip disability. As indicated above, STRs dated in July 1977 indicated that the Veteran's hips were uneven due to his leg length discrepancy. Private treatment records dated in July 2007 indicated that the Veteran suffered from end-stage osteoarthritis of the left hip with a history of chronic intractable left hip pain. He underwent a left total hip arthroplasty in August 2007. Pursuant the May 2015 Board Remand, the Veteran was afforded a VA examination in January 2016 at which time the examiner stated that the Veteran's left hip osteoarthritis and subsequent left total hip arthroplasty are due to his residuals of the left leg fracture resulting in a leg length discrepancy. He further explained that the left hip osteoarthritis was a natural progression of his left length discrepancy. Accordingly, the evidence of record demonstrates that the diagnosed left hip status-post total arthroplasty was caused by the now service-connected residuals of left leg fracture including leg length discrepancy. Entitlement to service connection for osteoarthritis of the left hip, status-post total arthroplasty, is therefore warranted on a secondary basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. c. Hepatitis C The Veteran contends that he incurred hepatitis C during his military service. For the reasons set forth below, the Board concludes that service connection is not warranted for hepatitis C. In this case, it is undisputed that the Veteran is currently diagnosed with hepatitis C. See the VA examination report dated January 2016. With respect to in-service incurrence, the Veteran asserts that he developed hepatitis C during service as a result of giving blood on numerous occasions in 'less-than-sanitary' conditions or due to receiving tattoos in both arms. See the VA Form 9 dated April 2013. He also alleges that his diagnosed hepatitis C may have been caused by air gun inoculations for overseas travel via dirty needles and jet injectors. Id. The Board notes that medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VA Training Letter 01-02 (April 17, 2001). In addition to the general statutory and regulatory legal authority governing service connection claims, a VA Fast Letter issued in June 2004 (FL 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). It was concluded in FL 04-13 that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. It also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence of documented cases of air-gun infection. The Fast Letter noted that, if a determination was made that an air gun was the source of hepatitis C, the report upon which the determination of service connection should include a full discussion of all modes of transmission and, if applicable, a rationale as to why an air gun was the source of the hepatitis C. FL 04-13. During the pendency of the appeal, all VA Fast and Training Letters, including those cited above, were rescinded and summaries incorporated into VA's Adjudication Manual, M21-1. The Adjudication Manual currently contains provisions similar to those in the Fast and Training Letters cited above. See M21-1, III.iv.4.I.2 (December 16, 2015). STRs, including the November 1977 service separation examination, were absent any documentation of liver problems or any variant of hepatitis. Moreover, there is no evidence that the Veteran required a blood transfusion at any time during his military service. Assuming that the Veteran received an air gun inoculation, donated blood, and/or received tattoos during service, the remaining question is whether his hepatitis C is related to service, including his in-service air gun inoculation, blood donation, and tattoos. VA treatment records dated from October 1996 indicated that the Veteran had a diagnosis of hepatitis C. Pursuant to the May 2015 Board Remand, the Veteran was afforded a VA medical opinion in January 2016 at which time the examiner determined that the Veteran's diagnosed hepatitis C was not incurred in or aggravated by his military service. The examiner noted the Veteran's report that he donated blood in less-than-sanitary conditions, and received tattoos and air gun inoculations during his military service. The Veteran additionally reported a pre-service blood transfusion in 1972 at the time of his left leg fracture during a motorcycle accident. The examiner explained, "Per UptoDate medical literature, most patients infected with hepatitis C acquired the disease through IV drug use or blood transfusion before routine testing became available in 1990." He noted that while tattooing and body piercing have the potential to transmit hepatitis C, "the extent to which they contribute to the disease burden in uncertain. So, although he claims he had tattoos in the service, blood transfusion carries a higher risk of infection and is the major risk factor for hepatitis C." The examiner concluded, "[t]herefore, it would be less likely as not for the Veteran's hepatitis C to have been incurred during tattoos which he reports he had during the time in the service and more likely due to his history of blood transfusion prior to 1990." In this matter, the medical evidence of record shows that the currently diagnosed hepatitis C is not likely due to the Veteran's military service. Specifically, the Board finds the January 2016 VA opinion particularly probative as to the question of etiology, as the opinion was based upon a thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Significantly, after reviewing the Veteran's entire medical history, the January 2016 examiner concluded that the Veteran's diagnosed hepatitis C is not etiologically related to his military service. The rationale was thorough and based on the overall record. "In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service." Horn v. Shinseki, 25 Vet. App. 231, 236 (2012); see Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed.Cir.2009) (explaining that the application of the presumption of sound condition does not "relieve the veteran of the burden of showing that the veteran suffered from a disease or injury while in service"); Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed.Cir.2007) ("The presumption of sound condition addresses the situation where a question arises whether a veteran's medical problems that arose during service existed before he joined the armed forces and, therefore, were not incurred in [the] line of duty." (emphasis added) (internal quotations omitted)). In other words, as the Court has previously explained, "before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service." Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). To this end, consistent with the absence of nexus in this case, the evidence of record does not support a finding that the Veteran's hepatitis C initially manifested or was incurred during his military service. The Veteran has not produced a medical opinion to refute the conclusions set forth in the January 2016 VA medical opinion concerning medical nexus. As was explained in the VCAA section above, he has been afforded ample opportunity to present competent medical evidence in support of his hepatitis C claim. He has not done so. See 38 U.S.C. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Thus, this VA medical opinion stands unchallenged as competent medical evidence on the crucial question of medical nexus. The Board has considered the contentions of the Veteran that the currently diagnosed hepatitis C was incurred during his military service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and 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 is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In addition, the Veteran's contentions are contradicted by the findings of the January 2016 VA examiner who specifically considered the Veteran's lay statements and risk factors in rendering his negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the January 2016 VA medical opinion to be of greater probative weight than the more general lay assertions of the Veteran. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the evidence, including the STRs, the post-service medical evidence, the uncontradicted VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for hepatitis C. Thus, the benefit-of-the-doubt rule is not for application in this regard. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for residuals of a left leg fracture, on an aggravation basis, is granted. Entitlement to service connection for osteoarthritis of the left hip, status-post total arthroplasty, secondary to residuals of left leg fracture, is granted. Entitlement to service connection for hepatitis C is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs