Citation Nr: 18142119 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 16-00 770 DATE: October 16, 2018 ORDER Service connection for diabetes mellitus is granted. Service connection for vision impairment due to diabetes mellitus is denied. The petition to reopen the claim of service connection for a Hepatitis C virus infection is granted. Service connection for a Hepatitis C virus infection is denied. Service connection for bilateral lower extremity peripheral neuropathy is granted. Service connection for an acquired psychiatric disorder is denied. REMANDED Service connection for a bilateral foot disorder is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Diabetes mellitus is due to the Veteran’s presumed exposure to herbicide agents during his service in the Republic of Vietnam. 2. The Veteran’s presbyopia and astigmatism are not diseases or injuries within the meaning of applicable legislation relating to service connection; and there has been no superimposed disease or injury related to service. 3. In an April 2010 rating decision, the RO denied the claim of service connection for a Hepatitis C virus infection on the basis that it was not related to service. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 4. Evidence received since the April 2010 rating decision relates to a previously unestablished fact necessary to substantiate the claim. 5. A Hepatitis C virus infection was not manifest in service. It is not attributable to service. 6. Bilateral lower extremity peripheral neuropathy is due to service-connected diabetes mellitus. 7. An acquired psychiatric disorder was not manifest in service; it is not attributable to service; and is not caused or worsened beyond its natural progression by a service-connected disease or injury. CONCLUSIONS OF LAW 1. Diabetes mellitus was incurred in wartime service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6)(iii), 3.309(e) (2017). 2. Service connection for presbyopia and astigmatism is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2017). 3. The April 2010 rating decision that denied service connection for a Hepatitis C virus infection is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 4. Evidence received since the April 2010 rating decision is new and material and the claim of service connection for a Hepatitis C virus infection is reopened. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.156(a) (2017). 5. A Hepatitis C virus infection was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. Bilateral lower extremity peripheral neuropathy is proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 7. An acquired psychiatric disorder was not incurred in or aggravated by service, and is not proximately due to or the result of a service connected disease or injury. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to June 1971. The Veteran has verified service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2012, April 2012, and April 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s attorney stated that he has preserved for appeal all errors including errors in the duty to assist. Nonetheless, neither the Veteran nor his representative have specifically 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). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). 1. Service connection for diabetes mellitus. The Veteran seeks service connection for diabetes mellitus. The Veteran has verified service in the Republic of Vietnam from July 1969 to July 1970. The Veteran’s treatment records confirm a current diagnosis of diabetes mellitus within the appeal period. See e.g. March 2012 VA Primary Care Attending Note. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii)(2017). Because of the Veteran’s service in the Republic of Vietnam during the requisite time period, the Veteran is presumed to have been exposed to herbicide agents in service. Next, certain diseases listed at 38 C.F.R. § 3.309(e) are presumed to be due to exposure to herbicide agents if manifesting to a degree of 10 percent or more at any time after service. Diabetes mellitus is one such disease. Treatment records indicate the Veteran was to modify his diet to manage the disease. Thus, the disease manifested to a compensable degree. Service connection is therefore warranted. The Board notes that the January 2012 VA medical opinion found against the claim. The examiner opined that it is more likely than not that the cause of diabetes mellitus is related to liver cancer, cirrhosis of the liver, Hepatitis C, and steroid medication than herbicide agent exposure. The examiner noted that the Veteran was hospitalized for a liver transplant and remains on steroids for immunosuppression related to the liver transplant. The RO denied the Veteran’s claim based on a finding that the presumption of service connection in connection with herbicide agent exposure had been rebutted. See 38 C.F.R. § 3.307(d). The Board points out that, while the January 2012 medical opinion lists many causes of the Veteran’s diabetes, it does not indicate a rationale for excluding herbicide exposure as a possible contributing cause to the Veteran’s diabetes mellitus. Thus, the Board find it is insufficient in probative value to overcome the presumption of service connection associated with herbicide agent exposure. 2. Service connection for vision impairment due to diabetes mellitus. The Veteran asserts that he has vision problems associated with diabetes mellitus. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s presbyopia and astigmatism are considered refractive errors. See Dorland’s Illustrated Medical Dictionary, pp. 168, 892, 1151 (32nd edition) (defining astigmatism as “an unequal curvature of the refractive surfaces of the eye,” presbyopia as “hyperopia and impairment of vision due to advancing years or to old age,” and hyperopia as an “error of refraction”). Refractive errors of the eyes are congenital or developmental defects and not disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. Service connection is only possible in such cases when there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). In other words, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Here, there is no indication that the Veteran’s diabetes mellitus created additional disability. There is no suggestion in any of the Veteran’s diabetic eye examinations or the VA eye examination that he was experiencing ophthalmological effects of diabetes mellitus. See e.g. June 2011 and September 2012 VA Eye Clinic Notes; September 2011 VA examination report. The Veteran’s eye examinations were negative for retinopathy. A September 2011 fundoscopic eye examination found that there was no retinopathy in either eye. In September 2012, a VA optometrist specifically stated that the Veteran had “[t]ype 2 diabetes without retinopathy.” In consideration of this evidence, the Board finds that the preponderance of the evidence is against service connection for presbyopia and astigmatism because the claim must be denied as a matter of law. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 3. Whether new and material evidence has been received to reopen the claim of service connection for a Hepatitis C virus infection. The RO denied the Veteran’s claim of service connection for a Hepatitis C virus infection in an April 2010 rating decision, finding that Hepatitis C was not incurred in service or related to service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The evidence received since the April 2010 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2017). For example, a November 2013 medical opinion was submitted that addresses the nexus to service, and raises a reasonable possibility of substantiating the claim by addressing air gun vaccinations as a risk factor. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits 4. Service connection for a Hepatitis C virus infection. The Veteran seeks service connection for a Hepatitis C virus (HCV) infection and its consequences, which included cirrhosis of the liver leading to two liver transplants. The Veteran contends that he underwent a blood transfusion after a broken nose during his service in the Republic of Vietnam. He further contends that he acquired HCV from vaccinations in service using contaminated air gun injectors. The Veteran has specifically denied having any of the other common risk factors for HCV, such as intravenous drug use, tattoos, or high-risk sexual behavior and the Board accepts this as true. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of HCV from which he has unfortunately experienced severe consequences, and evidence shows that he did receive vaccinations in-service, the preponderance of the evidence weighs against finding that the Veteran was exposed to HCV during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Recognized risk factors for contracting the HCV include intravenous drug use, blood transfusions before 1992, hemodialyses, intranasal cocaine use, high risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. See VBS Fast Letter 211B (98-110) (November 30, 1998). According to VA Fast Letter 04-13 (June 29, 2004), HCV is spread primarily by contact with blood and blood products. The highest prevalence of HCV infection is among those with repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). Id. The Fast Letter further states that occupational exposure to HCV may occur in the health care setting through accidental needle sticks. Id. Thus, a veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. Id. According to the Fast Letter, there have been no case reports of HCV being transmitted by an air gun injection. Id. Nevertheless, it is biologically plausible. Id. The Fast Letter concludes that it is essential that the examination report upon which the determination of service connection is made include a full discussion of all modes of transmission and a rationale as to why the examiner believes that a particular mode of transmission was the source of a veteran’s HCV. Id. The Fast Letter was subsequently rescinded but its substance was incorporated into the VBA Adjudication Procedures Manual (M21-1) at section III.iv.4.H.2.e. The M21-1 is not binding on the Board. See Overton v. Wilkie, No. 17-0125, 2018 U.S. App. Vet. Claims LEXIS 1251. The Board must “…discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.” Id. at *13-14. Turning to the evidence of record, service treatment records do not show that the Veteran was diagnosed with HCV liver problems in service. Nor do they support the Veteran’s contention that he received a blood transfusion for any purpose, or a broken nose at all. As noted above, service treatment records do note that multiple vaccinations were administered to the Veteran, although the records do not identify the method of injection. The Board accepts the Veteran’s account that he received injection by air gun and even that he saw blood on his arm and the arms of the men in front of him and behind him after the injection. The Veteran submitted a November 2013 medical opinion from a Registered Nurse in support of his claim. She described various causes of Hepatitic C in general and reviewed the history and the Veteran’s claims. The consultant stated at one point “[i]t is impossible to determine with any degree of certainty what exactly was the cause of his hepatitis C infection.” Then she references the Fast Letter’s conclusion that it is biologically plausible to transmit Hepatitis C through air-gun contamination. Despite this acknowledgement that it is “impossible” to determine the cause with “any” degree of certainty, the consultant proceeds to opine that it is “at least as likely as not that [the Veteran’s] well-documented diagnoses of chronic hepatitis C infection was the result of non-sterile air gun for standard inoculations during service.” The Board finds this opinion contradictory on its face. On the one hand, the consultant clearly states that it is impossible to determine the cause of the Veteran’s Hepatitis C with any degree of certainty. On the other hand, she renders an opinion as to the cause, seemingly based on some degree of certainty. There must be some degree of medical certainty in order to adequately establish the nexus element of service connection. Bloom v. West, 12 Vet. App. 185 (1999). Here, by the consultant’s own terms, there is none. The Board acknowledges the Veteran’s statements that he contracted HCV from air gun in service. The Veteran is considered competent to report his personal experiences, to include receiving air gun inoculations and seeing blood. However, stating the air gun used on him contained hepatitis involves a complex medical issue that the Veteran is not competent to address. He has no way of knowing, and has provided no evidence establishing or even suggesting that the air guns reportedly used for purposes of providing his specific vaccinations in service were actually contaminated. In other words, the presence of blood after the inoculation does not mean Hepatitis C was actually present in any of the individuals inoculated prior to him or on the air gun. The Veteran in this case has not been shown to have the medical training or expertise to render a competent opinion as to whether he may have contracted HCV in the manner alleged, as this is a determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran submitted an article indicating how the contamination of the air gun could have taken place, the article does not service as evidence tending to show contamination actually did take place in his specific case. The article amounts to speculation as applied in this Veteran’s case. The Veteran underwent a VA examination to address the HCV and a medical opinion was rendered. The December 2013 VA examination report noted the Veteran’s history of several episodes in service of digestive problems. There were then several severe episodes in the late 1980’s leading to the diagnosis of irritable bowel syndrome. Hepatitis C was diagnosed in 1991; cirrhosis of the liver in 2000. In 2009, a liver tumor was found. In 2010, a liver transplant was performed. The report noted the Veteran’s assertion of contaminated air gun vaccinations in service and the blood transfusion for a broken nose in Vietnam in 1970. The report further noted that the Veteran was told by his mother that he had hepatitis at age 6, but could provide no further details. The examiner opined that it is less likely than not that the Veteran’s Hepatitis C is a result of the air gun vaccinations he received during his active duty. The examiner reasoned that the air guns that were used in the military for immunization purposes were needleless; therefore it would be very unlikely that contaminated blood would be able to enter the Veteran’s blood stream when using a needleless system. As to the blood transfusion, the examiner reasoned that there was no documentation in the Veteran’s claim file regarding a blood transfusion or a nasal fracture. The examiner went on the explain that if the Veteran did receive a blood transfusion prior to 1992, then this could be a possible cause of his hepatitis. Blood products were not screened for hepatitis and other related blood diseases until 1992. The Board finds this opinion to be weak and not especially probative. Although the examiner apparently relies solely on a lack of evidence in service treatment records to provide a negative opinion with respect to the blood transfusion contention, see Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Board infers that the examiner found the assertion of a fractured nose and blood transfusion to be not credible. The Board itself finds the Veteran’s contention not very credible. It is implausible that a fracture of the nose that bled so much as to require a blood transfusion would not be documented in the treatment records. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). The Veteran’s attorney asserts that the VA examiner did not discuss all causes of Hepatitis C as required by the Fast Letter (which was later rescinded and its content transferred to the M21-1). As noted above, the Board is not bound by the M21-1. The Board does not find that the M21-1 provision that a report linking hepatitis to air gun injectors must include a full discussion of all potential modes of transmission to be necessary. This is because the Veteran denied the risk factors other than vaccinations and blood transfusion, there were no other causes to discuss. Stated another way, the discussion is self-evident– the other risk factors did not apply in this specific case. The history reported by the Veteran in the December 2013 VA examination suggests an argument that the gastrointestinal trouble the Veteran experienced in service was early symptoms of a Hepatitis C infection. The presence of these symptoms in service as reported by the Veteran is not persuasive evidence of HCV being present in service. Significantly, the gastrointestinal issues were later diagnosed as irritable bowel syndrome. A June 2009 treatment record notes that the Veteran “is unsure about the etiology of the [HCV] but thinks it may be due to his service time and possible exposure to Agent Orange.” A March 2010 VA treatment record notes, “It is unclear how he acquired hep[atitis] c, possibly from the immunizations he received in Vietnam….” The June 2009 and March 2010 statements use speculative language, which cannot constitute an adequate nexus for a grant of service connection. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). The statements are of low probative weight. A September 2009 VA treatment record notes that HCV “is felt to be from immunizations in Vietnam.” This statement provides no rationale, other than the Veteran’s reported belief for the cause. As discussed above, the Veteran’s belief is not competent evidence of exposure to the HCV in service. Therefore, the reliance on the Veteran’s reported history renders the statements not competent. Based on all of the evidence, the Board finds that there is insufficient competent and credible evidence to show that the Veteran’s HCV is a result of his service. While the Veteran is not shown to have any of the other known risk factors for HCV, the evidence does not support a finding that HCV was incurred in service, to include as due to air gun injections or a blood transfusion. As there is insufficient evidence in favor of the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b) (requires approximate balance of positive and negative evidence). Here, there is negligible credible and competent evidence in support of the claim. 5. Service connection for bilateral lower extremity peripheral neuropathy The issue of service connection for a bilateral foot disorder to include onychocryptosis and chronic plantar warts is addressed in the Remand section below. The claim of diabetic neuropathy of the feet is addressed here. The August 2011 VA diabetes examination reported that diabetic peripheral neuropathy was a complication of the diabetes mellitus. The accompanying diabetic sensory-motor peripheral neuropathy disability benefits questionnaire found peripheral neuropathy in both lower extremities. The Board finds the claim of bilateral lower extremity peripheral neuropathy secondary to service-connected diabetes mellitus has been substantiated. The August 2011 VA examinations provide the required diagnoses and medical nexus and are probative. There is no evidence contradicting these examinations. Service connection on a secondary basis is granted. 38 C.F.R. § 3.310. 6. Service connection for an acquired psychiatric disorder The Veteran asserts that he is entitled to service connection for depression and/or adjustment disorder. See January 2018 correspondence from attorney. The disorders are claimed as secondary to his Hepatitis C infection. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that, while the Veteran may have a current diagnosis of depression and adjustment disorder, there is no indication that it is proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Here, the Veteran, through his attorney, contends only that the acquired psychiatric disorder is due to Hepatitis C. Hepatitis C is not a service-connected disability. Indeed, treatment records reflect that the adjustment disorder and depression were due to treatment for Hepatitis C including a liver transplant. There is no indication that the acquired psychiatric disorder is due to another service-connected disorder. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s acquired psychiatric disorder is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records show a normal psychiatric evaluation at discharge from service and no treatment for or complaint regarding psychiatric symptoms during service. The Veteran here has not contended that the acquired psychiatric disorder was incurred in service or is related to service, and therefore has not submitted lay evidence in support of direct service connection. There is no medical evidence in support of this theory as well. Thus, there is no basis on which to grant service connection. REASONS FOR REMAND 1. Service connection for a bilateral foot disorder is remanded. The Veteran seeks service connection for onychocryptosis and plantar warts. In a May 2010 statement, the Veteran indicated he experiences chronic heel and sole warts, and constant ingrown toenails on the large toes and indicated that these conditions are aggravated by his diabetes mellitus. At an August 2011 VA foot examination, onychocryptosis was diagnosed. No opinion was rendered. The Board cannot make a fully-informed decision on the issue of whether onychocryptosis is secondary to service-connected diabetes mellitus because no VA examiner has opined on the theory. 2. Entitlement to a total disability rating based upon individual unemployability is remanded. Finally, because the evaluations assigned to the now service-connected diabetes mellitus and bilateral lower extremity peripheral neuropathy could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate medical professional to obtain an opinion as to the following: a. Whether the Veteran’s onychocryptosis is at least as likely as not proximately due to service-connected diabetes mellitus. b. Whether onychocryptosis is at least as likely as not aggravated beyond its natural progression by service-connected diabetes mellitus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel