Citation Nr: 18159621 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 10-08 687 DATE: December 20, 2018 ORDER Service connection for hepatitis C is denied. REMANDED Entitlement to a compensable rating for herpes infection of the mouth and lips with erythema multiforme is remanded. FINDING OF FACT Hepatitis C is not shown to be causally or etiologically related to any disease, injury, or incident during service, or caused or aggravated by the Veteran’s service-connected herpes infection of the mouth and lips with erythema multiform. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3. 310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1973 to April 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a local hearing at the RO before a Decision Review Officer (DRO) in December 2009, and at a Board hearing before the undersigned Veterans Law Judge in May 2012. Transcripts of both hearings have been associated with the record. In January 2013 and August 2015, the Board remanded the case for additional development, and in July 2016, denied the claims on appeal. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court issued a Memorandum Decision, which set aside and remanded the Board’s July 2016 decision for action consistent with the Memorandum Decision. The case now returns to the Board. A review of the record reveals that additional documents were added to the claims file after the issuance of the November 2015 supplemental statement of the case. However, with the exception of a March 2016 Informal Hearing Presentation submitted by the Veteran’s representative, the documents are either duplicative of evidence submitted prior to the November 2015 supplemental statement of the case or are irrelevant to the issues on appeal. Therefore, there is no prejudice to the Veteran in the Board proceeding with an adjudication of his claims at this time. 1. Entitlement to service connection for hepatitis C. The Veteran contends that his current hepatitis C is related to his active military service. Specifically, he argues that his condition was caused by in-service inoculation with an unsterilized air gun, his work as a dental hygienist, an in-service tooth extraction, or by exposure to toxic gas or fumes during service. Alternatively, he contends that his hepatitis C was caused or aggravated by his service-connected herpes. Initially, the Board notes that the June 2018 Memorandum Decision did not address arguments on appeal relating to the July 2016 Board denial of service connection for hepatitis C in an effort to serve judicial efficiency. See Best v. Principi, 15 Vet.App.18, 20 (2001) (finding the Court’s practice of limiting its opinions to the issue necessary to effect a remand is consistent with the jurisdictional statute under which it operates). Nevertheless, upon further review of the Veteran’s claim, the Board again finds that service connection is not warranted for hepatitis C. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, hepatitis C is not recognized as a chronic disease pursuant to VA regulations and, consequently, the laws and regulations governing presumptive service connection, to include on the basis of a continuity of symptomatology, are inapplicable. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At the outset, the Board notes that the Veteran has a current diagnosis of hepatitis C, as evidenced by the VA examinations of record including a June 2013 VA examination. The Veteran’s service treatment records do not reflect any complaints, treatments, or findings related to hepatitis C. Notably, examinations performed in March 1973 (entrance) and March 1977 (separation) found all of the Veteran’s bodily systems to be within normal limits. However, the Veteran did have a tooth extracted in May 1973 and was diagnosed with gonorrhea in July 1974. Additionally, the Veteran’s service personnel records document his in-service work as a dental technician/hygienist/assistant. Finally, the Veteran has reported being inoculated in-service by an air-gun. In February 2006, in conjunction with his initial claim for service connection for hepatitis C, the Veteran was afforded a VA examination. Regarding his exposure to risk factors for developing hepatitis C, the examiner noted VA treatment records documenting a remote history of cocaine use and multiple sexual partners (see April 2001 and May 2005 treatment records) and possible exposure to patient blood as a dental hygienist during or after service. Unfortunately, the examiner apparently misread a February 2001 treatment record that states “[p]atient[’s] sexual partner is monogamous [and] has one tattoo obtained in the 1980s[,]” and thus also indicated that the Veteran (not his wife) acquired a tattoo in the 1980s. To be clear, it is evident from the Veteran’s lay testimony and from a May 2009 statement from a clinician at Banner Health Center that, aside from ear piercings, the Veteran does not have any tattoos or body piercings. Ultimately, after reviewing the record and examining the Veteran, the examiner found that it was not at least as likely as not that the Veteran’s hepatitis C was related to his service. In support thereof, the examiner noted that the Veteran only worked as a dental technician for four years during service, while he worked as a civilian dental technician for 28 years, a significantly longer period for possible exposure. The examiner also noted that other risk factors were present, including multiple sexual partners and a history of drug use. While the Veteran was treated in service for gonorrhea, the examiner did not believe that fact was indicative of an in-service nexus to the Veteran’s eventual diagnosis of hepatitis C. Thereafter, pursuant to the Board’s January 2013 remand, another VA examination was conducted in June 2013. Regarding the Veteran’s risk factors for contracting hepatitis C, the examiner noted that treatment records document a history of cocaine use (although the Veteran denied such use at the examination); three ear piercings (the third had been allowed to close); a history of sexual partners prior to his current long-term relationship (which may have resulted in the prescription of penicillin for gonorrhea while in service); possible exposure to hepatitis C during his work as a dental assistant; and the Veteran’s diagnosis of herpes. The examiner also checked a box on the examination form indicating “other direct percutaneous exposure to blood[,]” and, while a few examples included activities that the Veteran clearly did not engage in (i.e. tattooing and body piercing), another example was acupuncture with non-sterile needles, an exposure endorsed by the Veteran’s reports of being inoculated in-service by an unclean air gun. Ultimately, after interviewing and examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the Veteran’s hepatitis C was related to his military service, to include as a result of air gun vaccinations, tooth extraction, or service-connected herpes. Regarding the air gun, the examiner noted that, even if there were infected blood on the nozzle from a previously injected person, transmission of hepatitis C via air gun has not been a documented transmission route for the virus. Instead, the examiner opined that it was more likely that the Veteran’s hepatitis C was related to other risk behavior such as body piercings, prior sexual partners, exposure at his work, or drug use. Furthermore, the examiner stated that medical literature does not support the Veteran’s contention that his herpes caused or aggravated his hepatitis C. In this regard, hepatitis C was noted to be a viral disease that is transmitted in infected blood. In the August 2015 Board remand, the Board requested an addendum opinion to specifically address the Veteran’s lay assertions regarding his exposure to risk factors for contracting hepatitis C. Specifically, the examiner was asked to address the Veteran’s reports that he did not have tattoos, body piercings (aside from his ear piercings), engage in high risk sexual activity, or use drugs. Thus, in October 2015, the 2013 examiner again reviewed the Veteran’s claims folder, service treatment records, VA treatment records, and the Board’s prior remands and ultimately concluded that it is less likely than not that the Veteran’s hepatitis C is etiologically related to the Veteran’s active military service. In support thereof, the examiner noted that there is no credible, scientific literature indicating that hepatitis C has been transmitted by air gun injections. Furthermore, the examiner noted that there is no indication that the Veteran received a blood transfusion in conjunction with the May 1973 in service tooth extraction and that concurrent treatment records indicate that the tooth was removed without difficulty, making it less likely than not that the Veteran developed hepatitis C as a result of the extraction. Further, the examiner acknowledged the Veteran’s reports that despite the use of gloves and masks during his in-service work as a dental technician, there were many times when he was pricked with a needle and patient blood. However, the examiner further noted that he was only a dental technician for four years in service, while he worked as a technician in civilian life for 28 years. Notably, the examiner specifically acknowledged the Veteran’s denial of hepatitis risk factors, to include having more than one sexual partner in his life, using cocaine, and having tattoos. However, the examiner noted a March 2005 VA treatment record documents the Veteran’s then reports of using cocaine, abusing alcohol, using marijuana, piercing his ears, having more than one sexual partner in his life, having sexual activity with men, and having gonorrhea. The examiner also referenced another March 2005 treatment record that notes the Veteran’s reports of ear piercing, being stabbed, and being in multiple fights. Next, the examiner referenced a May 2005 treatment record in which the Veteran reported exposure to bodily fluids via cut gloves, working without gloves, and being robbed and hit in the head and stabbed in the arm. Ultimately, the Board finds that the most probative evidence of record indicates that the Veteran’s hepatitis C is not related to his military service, to include the May 1973 tooth extraction, air gun inoculations, service-connected herpes, in-service work as a dental hygienist, or his reported exposure to toxic gas and fumes therein. At this point, the Board notes that the Veteran has emphatically denied high-risk sexual activity as well as intranasal and intravenous drug use. Furthermore, the Veteran has indicated during the latter part of his appeal that his identity was stolen. Nevertheless, VA treatment records do note on several occasions in the early 2000s that the Veteran reported having multiple sexual partners (meaning more than one in his lifetime, not sexual contact with multiple people at one time), a history of cocaine use, sexual contact with men, chronic abuse of alcohol, and the record contains an October 1990 treatment record documenting the Veteran being stabbed by his wife’s nephew. Ultimately, while the Board has fully considered the Veteran and his wife’s adamant statements that he did not have any non-service related risks of contracting hepatitis C, the Board nevertheless finds that the statements he made while receiving medical treatment indicating a history of more than one sexual partner, the use of cocaine, excessive alcohol use, and being stabbed are of higher probative value than his subsequent denial of these activities. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Furthermore, the Board finds that the opinions of the 2013 and 2015 examiner, provided after reviewing the claims file on two separate occasions and taking notice of the Veteran’s lay assertions, are highly probative as they reflect consideration of all relevant facts and the examiner provided a detailed rationale for the conclusions reached. See Nieves-Rodriguez, supra (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl, supra. In this regard, while the examiner did not specifically opine that the Veteran’s hepatitis C was not related to his alleged exposure to toxic fumes during service, she did find that it was not related to any incident of the Veteran’s service and aside from the Veteran’s vague statements regarding his exposure to such fumes, there is no competent medical evidence of record linking his hepatitis C to said exposure. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination). The Board acknowledges that as a dental hygienist, the Veteran may have some level of medical training. However, the Board finds that the Veteran’s opinion as to the etiology of his hepatitis C is entitled to significantly less probative weight than the opinion rendered by the 2013 and 2015 examiner, a physician, who has greater training and skill in evaluating medical issues than the Veteran. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The Board may also take the Veteran’s self-interest into account in assessing the weight to be accorded to his self-assessment. See Pond v. West, 12 Vet. App. 341, 345 (1999) (although the Board must take a physician-Veteran’s opinions into consideration, it may consider whether self-interest may be a factor in making such statements, even if the Veteran himself is a health care professional); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (The Board may consider self interest in evaluating the testimony of claimants). To the extent the Veteran’s wife believes that his hepatitis C is related to service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hepatitis C is a matter not capable of lay observation, and requires medical expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of the Veteran’s hepatitis C is not competent medical evidence. In summary, the Board finds that hepatitis C is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include as caused or aggravated by the Veteran’s service-connected herpes. Consequently, service connection for such disorder is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to a compensable rating for herpes infection of the mouth and lips with erythema multiforme. The Veteran contends that he is entitled to a compensable rating for his service-connected herpes infection as it is more severe during its active phase than the currently assigned rating reflects. In denying the Veteran’s claim for a compensable rating for herpes in the July 2016 decision, the Board relied upon a VA examination conducted in September 2015. However, in the Memorandum Decision, the Court found such VA examination to be inadequate to the extent that it did not sufficiently consider the Veteran’s lay statements regarding the severity of his herpes when in an active phase, including the functional impact an outbreak causes, nor did it consider medical evidence of record which showed his herpes affected different and larger portions of his body. Consequently, a remand is necessary in order to obtain an addendum opinion which addresses the severity of the Veteran’s herpes during its active phase, including the resulting functional impairment. The matter is REMANDED for the following action: Return the record to the VA examiner who conducted the September 2015 skin and scars examination so as to obtain an addendum opinion regarding the nature and severity of the Veteran’s herpes during an active phase. The record and a copy of this Remand must be made available to the examiner. If the September 2015VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the record, the examiner is requested to address the following inquiries: (A) The examiner should estimate the extent of the Veteran's herpes during an active phase, to include estimating the percentage of his entire body and exposed areas associated with such skin disability. (B) The examiner should also address the functional impairment cause by the Veteran’s herpes during an active phase. In offering the opinions the examiner should comment on the lay statements and medical evidence of record addressing the severity and extent of the Veteran’s herpes during an active phase. In this regard, the examiner should specifically comment on: • May 2012 testimony that his outbreaks affect his mouth, gum, cheek, lips, palms of hands, arms, chest, buttocks, left hip, and groin. • The February 2010 VA examination documenting a 1.2 cm lesion on the left hip. • The April 2012 VA examination documenting two 2 mm lesions on the upper lip, in addition to a blister on the left hip. • The May 2013 VA examination documenting scars consistent with a herpes outbreak on the left hip and thigh totaling 107 square cm. The examiner should also comment on any lay statements of records regarding accompanying functional impairment during an outbreak, including but not limited to his May 2012 testimony of: an inability to advance in his line of work; having to miss weeks of work per year; and experiencing ridicule from both colleagues and clients alike. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel