Citation Nr: 18150826 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-29 422 DATE: November 15, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a low back condition, to include sciatica, is denied. Entitlement to service connection for residuals of hepatitis C is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, to include specific in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran has a low back condition, to include sciatica, due to a disease or injury in service, to include specific in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran has residuals hepatitis C due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307(a)(3), 3.309. 2. The criteria for service connection for a low back condition, to include sciatica, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for residuals of hepatitis C are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. On appeal, the Veteran asserts that his service as a gunner exposed him to loud noises, which caused his tinnitus. The Veteran further contends that his low back condition is a result of having to lift ninety-eight-pound artillery shells and that he was seen both during and after his service in Vietnam for problems with his back. Turning to his claim for hepatitis C, the Veteran asserts that he was exposed to unsanitary needles in the fields of Vietnam and in air guns, shared razors with other service members, had frequent contact with the bodies of other service members, who were covered in blood and bodily fluids, and had open scars and mosquito bites. The Veteran’s representative has argued that, because the VA examinations for the Veteran’s low back condition were conducted by a nurse practitioners and not by a Board Certified Orthopedic Doctor, the issue of service connection for the Veteran’s low back condition must be remanded. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain chronic diseases, such as organic diseases of the nervous system (which includes tinnitus), a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. Fountain v. McDonald, 27 Vet. App. 258, 264–65 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for tinnitus is denied. The Veteran’s Service Treatment Records (STRs) reveal no complaints or treatment for any problems with his hearing. The Veteran’s claims file includes post-service VA Medical Center (VAMC) records from April 2002 to March 2016. The VAMC records show that July 2012 was the earliest indication that the Veteran was experiencing tinnitus. In an October 2012 Statement, the Veteran verified that he had no private treatment records to submit to support his claim. In August 2013, a VA audiological examination report noted an in-person examination, review of the claims file, and recited the Veteran’s medical history and complaints. It was reported that the Veteran stated tinnitus began fifteen years ago, which then was eighteen years after his separation from service. Tinnitus was diagnosed. The audiologist opined that the Veteran’s tinnitus was not related to active duty service, but was rather associated with the nonservice-connected hearing loss at least as likely as not a symptom associated with his clinical hearing loss. The rationale for this opinion was: “No significant change in hearing was noted during service. No reports of tinnitus were found in the Veteran’s [service medical records]. It is less likely than not that the Veterans tinnitus is related to his military noise exposure.” The Board finds that the Veteran is not entitled to a presumption of service connection for his diagnosis of tinnitus. The Veteran was not diagnosed with tinnitus until, at the earliest, July 2012, some forty-two years after his separation from service. Thus, the Veteran’s diagnosis of tinnitus did not manifest itself to a degree of ten percent within one year following his discharge from service. Additionally, there is no evidence of record to establish that the Veteran experienced continuity of symptomatology of tinnitus since his discharge from service. Therefore, presumptive service connection is not appropriate. See Walker, 708 F.3d at 1336; 38 C.F.R. § 3.303(b). The Board also finds that the Veteran is not entitled to direct service connection for his diagnosis of tinnitus. The Board notes that the Veteran is competent to report the activities in which he engaged during his military service, specifically that he was exposed to gunfire. By his own account, however, the Veteran reported that he has been experiencing tinnitus for only the past fifteen years. To support her opinion that the Veteran’s tinnitus was not related to service, the VA audiologist noted that there were no complaints of hearing or tinnitus on the Veteran’s entrance or separation examinations and that the Veteran’s VAMC records indicated that he has complained of tinnitus only since July 2012. Therefore, the Veteran has not satisfied all the necessary elements for entitlement to service connection for tinnitus. See Romanowsky, 26 Vet. App.at 293; 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for a low back condition, to include sciatica, is denied. The Veteran’s STRs contain a complaint of back aches at the time of separation, but contain no indication of a diagnosis or treatment for the Veteran’s back. In the report of an August 2013 VA examination, the examiner stated that the Veteran’s lower back condition was less likely than not caused by his period of service. In the report, the examiner noted that there was no injury of the Veteran’s back documented in service. In January 2016, the VA requested an addendum to the August 2013 examination to account for the Veteran’s complaints of back pain at separation. The addendum opinion indicated that the VA examiner reviewed the Veteran’s STRs and VAMC records. The VA examiner maintained her opinion. Specifically, she stated the following: There is no chronicity of care for the back from . . . [the] separation exam [on] 5/13/1970 until . . . 37 years after military service at which time the [V]eteran sought out medical care and was diagnosed with sciatica. He was treated conservatively. Xrays ordered and reviewed by this provider reveal [degenerative joint disease (DJD)] of thoracic and lumbar spine. No other abnormalities noted. It is my medical opinion that the [DJD] and sciatica are most likely the cause of the [V]eteran’s current . . . low back pain, not from “back aches” in [the] military. The Board is satisfied that the examiner properly considered the Veteran’s complaint of back aches at separation and rendered a sufficient nexus opinion as to the etiology of the Veteran’s low back condition. Specifically, the examiner explained that the back aches noted at separation are not related to his currently diagnosed lumbar spine disability, noting that chronicity of care for the Veteran’s back began thirty-seven years after his complaint of back aches. Therefore, the Veteran has not satisfied all the necessary elements for entitlement to service connection for a low back condition, to include sciatica. See Romanowsky, 26 Vet. App.at 293; 38 C.F.R. § 3.303(a). As an additional point, the Board notes that the opinion and addendum are not inadequate, as the Veteran’s representative alleges, simply because the examiner is not a specialist. The Veteran’s representative makes no specific allegations as to the examiner’s qualifications. Therefore, without specific allegations of inadequate qualifications, the Board will assume the competency of the VA examiner. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010); Cox v. Nicholson, 20 Vet. App. 563, 568 (2007); 38 C.F.R. § 3.159(a)(1). 3. Entitlement to service connection for residuals of hepatitis C is denied. It is well established that VA law provides that no compensation shall be paid if a disability is the result of a veteran’s own willful misconduct, including the abuse of alcohol and drugs. 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c)(3). There are recognized risk factors for contracting hepatitis C that should be taken into consideration when developing and adjudicating a claim of service connection. The medically recognized risk factors are: transfusion of blood or blood products before 1992; organ transplant before 1992; hemodialysis; tattoos; body piercing; intravenous drug use (due to shared instruments); high-risk sexual activity (risk is relatively low); intranasal cocaine use (due to shared instruments); accidental exposure to blood products in health care workers or combat medic or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or by the sharing of toothbrushes or shaving razors. The use of air gun immunizations has not been documented as a potential risk factor for hepatitis C; however, it biologically is possible. VBA Fast Letter (04-13) June 29, 2004; VA M21-1 Adjudication Procedures Manual, III.iv.4.H.2.e. The Veteran’s STRs contain no diagnosis or documented treatment of the Veteran’s liver. VAMC records reveal that the Veteran was diagnosed with hepatitis C as early as September 2002. Those records document that the Veteran had a history of intravenous drug use (IVDU) thirty years prior. Those records also reflect the treating physician’s opinion that the Veteran’s hepatitis C was “most likely” from his previous IVDU. In February 2016, VAMC records indicate that treatment the Veteran had been undergoing was successful and that he was cured of hepatitis C. Despite the absence of a current diagnosis of hepatitis C, the VAMC records indicate that the Veteran has stage II fibrosis of the liver. As such, the Veteran’s claim is properly characterized as entitlement to service connection for the residuals of hepatitis C. The Board notes that the Veteran is competent to report that he was exposed to air gun inoculations, shared razors with other service members, etc. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, 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’); 38 C.F.R. § 3.159(a)(2). The Board concedes that the Veteran suffers from the residuals of hepatitis C. However, there is no competent or credible lay or medical of nexus between those residual complications and the Veteran’s active duty service. The VA physician in September 2002 specifically stated that the Veteran’s hepatitis C was “most likely” from his IVDU. The Veteran’s assertion that it was due to other in-service risk factors is less probative than the VA physician’s. This is because the VA physician has the knowledge and background to weigh the relevant risk factors to assess the etiology of the complex medical issue on appeal, while the Veteran lacks competence in such matters. Moreover, to the extent that Veteran’s previous IVDU occurred or overlapped with his period of active duty service, that type of conduct is willful misconduct that does not qualify under VA law for disability compensation. Thus, even in-service contraction of hepatitis C, if from willful misconduct such as unlawful drug use, is not a compensable disability. See 38 C.F.R. §§ 3.1(n), 3.301(c)(3). Therefore, the Veteran has not satisfied all the necessary elements for entitlement to service connection for hepatitis C. See Romanowsky, 26 Vet. App.at 293; 38 C.F.R. § 3.303(a). CONCLUSION In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for tinnitus, a low back condition, to include sciatica, and hepatitis C. The Board is unable to find an approximate balance of the positive and negative evidence submitted to otherwise warrant for the Veteran any favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel