Citation Nr: 18151296 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 04-03 634 DATE: November 19, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a kidney condition is denied. Entitlement to a 10 percent rating for hepatitis C is granted prior to December 11, 2017, subject to the laws and regulations governing the payment of monetary benefits. A compensable rating for hepatitis C from December 11, 2017 is denied. REMANDED Entitlement to service connection for a bilateral upper extremity disability, claimed as carpal tunnel syndrome, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The most probative medical evidence demonstrates that the Veteran's hypertension was not incurred in or otherwise related to his period of active service or manifest within a year of his active service, and is not etiologically related to a service-connected disability. 2. The most probative medical evidence demonstrates that the Veteran's kidney disability was not incurred in or otherwise related to his period of active service or manifest within a year of his active service, and is not etiologically related to a service-connected disability. 3. Prior to December 11, 2017, the Veteran's hepatitis C was manifested by symptoms that approximated intermittent fatigue, malaise, and anorexia and without dietary restrictions, continuous medication or incapacitating episodes. 4. From December 11, 2017, the Veteran’s hepatitis C has been nonsymptomatic. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a kidney condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. Prior to December 11, 2017, the criteria for a 10 percent rating, but no higher, for hepatitis C, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7354. 4. From December 11, 2017, the criteria for a compensable rating for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1972 to June 1974. The Board previously remanded some of these claims for additional development in April 2005, September 2009, January 2011, and March 2017. Generally, a claim that was been denied by the Board decision may not thereafter be reopened and allowed unless new and material evidence is received. 38 U.S.C. §. However, a claim based on a diagnosis of a new disability states a new claim, when the new disorder had not been diagnosed at the time of the prior notice of disagreement. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The Board may accordingly consider the claim for service connection for an upper extremity disability without first determining whether new and material evidence has been received. In light of his diagnoses of right hand arthritis and cervical radiculopathy, the Board has expanded the claim to include all disabilities of the upper extremities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection 1. Service Connection Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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); 38 C.F.R. § 3.303 (a). Service connection may be established under 38 C.F.R. § 3.303 (b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Hypertension, cardiovascular-renal disease and organic diseases of the nervous system are listed as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies to the claims for service connection for hypertension, a kidney disorder, and carpal tunnel syndrome. Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The one-year presumption applies to the claims for service connection for hypertension, CTS, and a kidney condition. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. To prevail on the issue of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 2. Entitlement to service connection for hypertension The Veteran seeks entitlement to service connection for hypertension, to include as secondary to service-connected hepatitis C. Service treatment records do not contain any findings or diagnoses of hypertension. The Veteran’s separation examination in March 1974 showed a blood pressure reading of 100/60. There is no evidence indicating that hypertension manifested to a compensable degree within one year of the Veteran’s separation from service in June 1974. Therefore, service connection for hypertension may not be presumed. The most probative evidence of record indicates that hypertension was initially diagnosed in 1992. A January 1992 VA treatment record shows a blood pressure reading of 141/96. A June 1993 treatment private treatment record from the Ohio Department of Rehabilitation and Correction reflects a diagnosis of hypertension. VA treatment records dated in June 1993 reflect a diagnosis of hypertension. A February 2002 private treatment record that the Veteran had a 10-year history of hypertension. The Veteran was afforded a VA examination in April 2016. The Veteran reported a history of hypertension for 15 years. The examiner reviewed the claims file. The examiner noted that service treatment record did not show reports, diagnoses, or treatment for hypertension. It was noted that he reported a history of heart problems on a dental questionnaire during service. Upon discharge he reported that he had periods of dizziness or fainting. The examiner opined that it is less likely than not that hypertension was incurred in service. The examiner reasoned that the service treatment records are negative for any diagnosis or treatment of hypertension. The Veteran’s separation physical showed that he checked “no” for hypertension. The dental questionnaire in service showed that he checked “yes” to a heart condition, but no diagnosis was stated. The examiner noted that the Veteran’s blood pressure upon separation was normal, with a reading of 100/60. There is no competent medical evidence linking the Veteran's current hypertension to service. The Board has considered the Veteran's assertions that he never had problems with hypertension before service. The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the cause of the Veteran's hypertension involves a complex medical etiological question. The Veteran is competent to relate the hypertension symptoms that he experiences, but he is not competent to opine on whether there is a link between the current disability and service because such conclusions require specific, highly specialized, medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL is too "medically complex" for lay diagnosis based on symptoms); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a disorder capable of lay diagnosis). There is no competent evidence that hypertension is related to service or manifested to a compensable degree within a year of separation from service. Accordingly, the preponderance of the evidence is against a grant of service connection for hypertension. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for hypertension must be denied. See 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a kidney condition In written statements in support of his claim, the Veteran has asserted that his kidney condition was caused by hepatitis C. Service treatment records do not reflect diagnosis of treatment of a kidney condition. The March 1974 separation examination noted a normal clinical evaluation of the genitourinary system. There were no diagnoses of a kidney condition. There is no evidence showing that renal disease manifested to a compensable degree within one year of separation from service. Treatment records from Lutheran Hospital, dated in November 2005, reflect an initial post-service diagnosis of a kidney condition. The records show a diagnosis of kidney stones. The Veteran was afforded a VA examination in December 2017. The examination report noted a diagnosis of nephrolithiasis (kidney stones) in the early 2000’s. The examiner noted that the Veteran’s only kidney condition was a kidney stone that he passed in the early 2000’s. Since then, he had incidental findings of asymptomatic kidney stones seen on liver imaging studies. The examiner opined that kidney stones are not associated with hepatitis C, either by causation or aggravation. The examiner opined that it is therefore less likely than not that kidney stones were caused or aggravated by hepatitis C. There is no competent medical evidence linking nephrolithiasis to service-connected hepatitis C, either by causation or aggravation. The Veteran is competent to report his observable symptoms. However, he is not competent to provide a medical opinion as to the etiology of his kidney disability because such an opinion requires medical expertise. See Jandreau, supra; Kahana, supra. There is no competent evidence of a nexus between service-connected hepatitis C and a kidney disability. Accordingly, the preponderance of the evidence is against a grant of service connection for a kidney condition. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a kidney condition must be denied. See 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a higher initial rating for hepatitis C Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for hepatitis C was granted in an April 2010 rating decision. A non-compensable (0 percent) rating was assigned from February 2008. The Board notes that a November 2011 rating decision severed service connection for hepatitis C; however, an April 2016 rating decision restored service connection for hepatitis C, effective from November 1, 2011. The Veteran's disability is rated under Diagnostic Code 7354 for hepatitis C. Under this Code, a 10 percent rating is warranted when the veteran has serologic evidence of hepatitis C infection and the following signs and symptoms due to the hepatitis infection: 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 when symptoms include daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication; or for incapacitating episodes (with symptoms described above) 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 when symptoms include daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or for incapacitating episodes (with symptoms described above) 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 when symptoms include 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 assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. The term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112. Note 1 under Diagnostic Code 7354 states: Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Code 7354 and under a diagnostic code for sequelae. Note 2 defines an "incapacitating episode" as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 38 C.F.R. § 4.114, Diagnostic Code 7354. A VA treatment record dated in January 2009 reflects that the Veteran was advised to have a CT scan with contrast. The Veteran indicated that he was interested in going to the hepatitis C clinic to learn more about treatment options. A vaccine information sheet was reviewed with the Veteran. He was diagnosed with chronic hepatitis C. The Veteran had a VA examination in May 2010. The Veteran denied incapacitating episodes of fatigue with symptoms severe enough to require bed rest. He denied malaise, nausea or vomiting, anorexia, arthralgias, right upper quadrant pain and unintentional weight loss. The examiner diagnosed chronic hepatitis C, no previous treatment. The examiner noted current mildly elevated transaminase with intact liver synthetic function. In an October 2010 written statement, the Veteran noted that he had fatigue. A March 2011 VA treatment record indicates that the Veteran presented for an initial evaluation in the hepatitis C clinic. A review of symptoms showed occasional fatigue and nausea. The Veteran reported that his appetite was good. He denied vomiting, changes in bowel patterns, or abdominal discomfort. He denied rashes, itching, or easy bruising. He had a history of cysts of the thigh, face, and head. The Veteran reported arthritic pains ever since past back, shoulder, and foot injuries. A January 2014 VA treatment record noted that his bloodwork showed mild transaminitis, likely due to chronic hepatitis C. The Veteran was advised to abstain from alcohol. A November 2017 letter from a VA physician noted that the Veteran had a negative hepatitis C viral load after completing six months of treatment for hepatitis C. The Veteran was afforded a VA examination in December 2017. The examiner noted that the Veteran was diagnosed with hepatitis C in 2001. He received treatment with ledipasvir/sofosbuvir from April 2017 to June 2017. The examiner noted that the Veteran’s hepatitis C viral load had been undetectable since his treatment was completed. In the past 12 months, the Veteran did not have incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. The evidence prior to December 11, 2017 shows that hepatitis C was manifested by nausea, arthralgias, and fatigue. Based on the foregoing and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's symptoms during the rating period prior to December 11, 2017 more nearly approximated the criteria for a 10 percent evaluation. The criteria for a rating higher than 10 percent have not been met at any point during the appeal period. The evidence does not show that hepatitis C resulted in daily fatigue, malaise, and weight loss requiring dietary restriction or continuous medication or incapacitating episodes requiring bedrest for at least two weeks during a 12-month period. The Board finds that a non-compensable rating is warranted from December 11, 2017. The December 2017 examination indicated that the Veteran had a non-detectable viral load since treatment with ledipasvir/sofosbuvir and did not have any symptoms of fatigue, malaise, nausea, vomiting, anorexia, arthralgia, right upper quadrant pain, or incapacitating episodes. Thus, the December 2017 examination indicates that the Veteran’s hepatitis C was essentially nonsymptomatic. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating from December 11, 2017. The benefit of the doubt rule has been considered in reaching this decision. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral upper extremity disability claimed as carpal tunnel syndrome is remanded. The Veteran asserts that carpal tunnel syndrome and left sided numbness is related to service-connected fibromyositis of the mid-back. The Veteran had a VA examination in December 2008. The examination noted use-related tingling dysesthesias affecting the entire upper extremity, with every episode affecting all fingers. A musculoskeletal examination showed negative Phalen’s and Tinel’s tests for entrapment neuropathy (i.e. cubital or carpal tunnel syndrome). A neurological examination showed no evidence of radiculopathy but did show an isolated deficit of executive function. The examiner opined that the pattern was indicative of depression and/or anxiety. The examiner opined that the chief complaint of numbness in the upper extremities that includes all fingers could not be explained by a neurological syndrome but was a symptom of anxiety disorders. A February 2018 VA treatment record shows a diagnosis of right hand arthritis. A VA treatment record dated in May 2018 noted a complaint of left-sided numbness and a diagnosis of cervical radiculopathy. The record reflects additional diagnoses of the upper extremities since the prior VA examination. The case is being remanded to obtain a VA examination and medical opinion addressing the etiology of the current disabilities. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran asserts that he is unemployable due to service-connected disabilities. In a January 2002 TDIU application, the Veteran noted that he is unable to work because of his service-connected back disability and due to left side disability. He indicated that he last worked on a full-time basis in 1987. A February 2002 physician certification noted left shoulder pain, low back pain, and weakness of the left upper extremity. The physician opined that the Veteran was only employable if he could get a job appropriate for his physical condition. The issue of entitlement to a TDIU is inextricably intertwined with the issue of service connection for disabilities of the upper extremities. Also, the Board finds that the case should also be remanded for a VA examination and medical opinion to determine the functional impairment caused by the Veteran’s service-connected disabilities, particularly if service-connected is established for additional disability on remand. This matter is REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form (VA Form 21-8940). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral upper extremity disability (other than service-connected left shoulder strain). The examiner must identify all disabilities of the upper extremities. The examiner’s attention is directed to VA treatment records dated in February 2018, which reflect diagnoses of cervical radiculopathy and arthritis of the right hand. The examiner must opine whether any diagnosed disability of the upper extremities (other than already service-connected left shoulder strain) is (1) proximately due to service-connected fibromyositis of the mid-back; or alternatively, (2) aggravated beyond its natural progression by fibromyositis of the mid-back. 3. Then, schedule the Veteran for an examination by an appropriate clinician to determine the functional impairment caused by his service-connected fibromyositis of the mid-back, left shoulder strain, and hepatitis C (and any other upper extremity disability for which service connection is established pursuant to this remand). The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of service-connected disabilities on his capacity for occupational activities. The examiner should identify all limitations or functional impairment caused solely by the Veteran’s service-connected disabilities. (Continued on the next page)   A complete rationale for all expressed opinions should be provided by the examiner. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Catherine Cykowski