Citation Nr: 18130390 Decision Date: 08/29/18 Archive Date: 08/29/18 DOCKET NO. 16-47 019 DATE: August 29, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disorder is reopened; the appeal is granted to this extent only. Service connection for hepatitis C is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a disorder manifested by fatigue, claimed as secondary to a back disorder, is remanded. Entitlement to service connection for a sleep disorder, claimed as secondary to a back disorder, is remanded. Entitlement to service connection for a sexual disorder, claimed as low libido, claimed as secondary to a back disorder, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, claimed as secondary to a back disorder, is remanded. FINDINGS OF FACT 1. In a final decision issued in March 1974, the Agency of Original Jurisdiction (AOJ) denied service connection for a back disorder. 2. Evidence associated with the record since the final March 1974 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disorder. 3. Hepatitis C is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The March 1974 rating decision that denied service connection for a back disorder is final. 38 U.S.C. § 4005(c) (1970) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1973) [38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017)]. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to March 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2015 by a Department of Veterans Affairs (VA) Regional Office. In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a back disorder. By way of background, in a March 1974 rating decision, the AOJ considered the Veteran’s service treatment records and denied service connection for a back disorder. In this regard, the AOJ noted that the Veteran was discharged from service because of a congenital condition diagnosed as transitional vertebra with spondylolysis of L5. In this regard, it was observed that he had injured his back several years prior to service while lifting something and, thereafter, was in a motorcycle accident where he reinjured his back. The AOJ further noted that the Veteran’s service treatment reflected back complaints; however, it was determined that his back disorder existed prior to service and was not aggravated therein. Later that month, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the March 1974 rating decision as to the denial of service connection for a back disorder is final. 38 U.S.C. § 4005(c) (1970) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1973) [38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the issuance of the March 1974 rating decision, additional evidence consisting of VA treatment records, private treatment records, and lay statements has been received. Magnetic resonance imaging (MRI) in November 2001 demonstrated multilevel discogenic changes with mild central canal stenosis and Grade I spondylolisthesis at L4-5, among other findings. As such presents a current disorder that is not of a congenital nature that could be related to an in-service event or injury, the Board finds the evidence associated with the record since the final March 1974 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disorder. Consequently, new and material evidence has been received to reopen the claim. 2. Entitlement to service connection 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all 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). 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. Hepatitis C arising from air gun immunizations has not been documented; however, it is biologically possible. See VBA Manual M21-1, III.iv.4.I.2.e. 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). The Veteran asserts that he has hepatitis C as the result of the sharing of needles for in-service immunizations. As an initial matter, the Board notes that private treatment records reflect diagnoses of hepatitis C during the pendency of the appeal. However, in November 2015, a VA physician reviewed the Veteran’s records and opined it was less likely as not that he had contracted hepatitis C in service through immunizations where the medical provider used the same needle on multiple soldiers. First, the VA physician noted the Veteran served in the mid-1960s and found it would be expected that, if he had contracted hepatitis C during that time, it would have manifested itself before 2008. In addition, the VA examiner found the Veteran had a history of another risk factor for hepatitis C. Specifically, he reported that he believed he had contracted hepatitis B when his skin was broken during an attack by a student with the virus in the 1990s. The VA examiner opined it was more likely the Veteran had contracted the hepatitis C at that time. Here, the Board accords great probative weight to the November 2015 VA examiner’s opinion as such considered all the pertinent evidence, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Furthermore, the record does not contain a positive nexus opinion connecting the Veteran’s hepatitis C to an in-service event, injury, or illness. Rather, the medical evidence indicates hepatitis C is more likely related to a post-service event. In this regard, the Board has considered the Veteran’s statements that his hepatitis C is related to his in-service immunizations; however, as a lay person, he has not shown that he 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 etiology of hepatitis C is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it involves knowledge of how the hepatitis infection is spread, to include the latency period between infection and symptoms. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his hepatitis C is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the Veteran has presented conflicting testimony as to a history of risk factors for hepatitis C. VA treatment records show he reported to a VA clinician that he believed he had contracted hepatitis B after an altercation with a student in the 1990s when his skin was broken. Conversely, he testified at the Board hearing that no actual bodily fluids were exchanged during the attack. However, the Board affords greater probative weight to his statements made to the VA clinician as such are considered to be highly credible as they were offered for the purpose of seeking medical treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997); 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”). In summary, the Board finds the Veteran’s hepatitis C is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for residuals of hepatitis C. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 3. Entitlement to service connection for a back disorder. The Veteran contends that his pre-existing back disorder had healed prior to service and, as such, he asserts that he incurred a separate back disorder as a result of his in-service duties involving working in maintenance and/or injuries sustained during service. He further reports that he has experienced chronic back pain since service. Therefore, the Veteran claims that service connection for a back disorder is warranted. In August 2015, a VA physician noted that a review of the evidence of record reflected that the Veteran’s transitional vertebra with spondylolysis of L5 pre-existed service and the episodes in service were merely acute exacerbations of the pre-existing condition. She ultimately opined that it was less likely as not that the Veteran’s transitional vertebra with spondylolysis of L5, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness during service. First, she noted that the Veteran had a congenital condition diagnosed as transitional vertebra with spondylolysis of L5, and had reported injuries to his back prior to service. Additionally, she noted that, during service, he was seen for a few times with low back pain and, in December 1966, he had some complaints of back pain after passing out. However, the examiner found that, after such syncopal episodes, a chronically disabling back condition with residual findings was not found. She noted that more recent records reflected that a disc could be impinging on a nerve root in February 1997 and discogenic changes, mild canal stenosis, and spondylolisthesis in November 2001. However, as such findings were noted 30 years after service and were not present in service, a relationship to any event in service could not be made. However, as the August 2015 VA examiner did not address whether the Veteran’s transitional vertebra with spondylolysis of L5 was a congenital defect or disease, or consider the Veteran’s lay statements regarding the nature of his in-service duties and his report of a continuity of back pain after service in regard to an acquired back disorder, the Board finds that an addendum opinion is necessary to decide the claim. 4. Entitlement to service connection for disorder manifested by fatigue, claimed as secondary to a back disorder. 5. Entitlement to service connection for sleep disorder, claimed as secondary to a back disorder. 6. Entitlement to service connection for sexual disorder, claimed as low libido, claimed as secondary to a back disorder. 7. Entitlement to service connection for an acquired psychiatric disorder, to include depression, claimed as secondary to a back disorder. The Veteran asserts that a disorder manifested by fatigue, a sleep disorder, a sexual disorder, and an acquired psychiatric disorder are secondary to his back disorder. Consequently, such claims are inextricably intertwined with the remanded claim of entitlement to service connection for a back disorder. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Therefore, consideration of such secondary service connection claims must be deferred pending the outcome of the claim for service connection for a back disorder. The matters are REMANDED for the following actions: Return the record the examiner who conducted the August 2015 VA back examination. The record must be made available to the examiner. If the August 2015 VA 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. Following a review of the record, the examiner should address the following inquiries: (A) Identify all currently diagnosed back disorders, to include transitional vertebra with spondylolysis of L5, discogenic changes, mild canal stenosis, and spondylolisthesis. (B) Pertinent to the diagnosis of transitional vertebra with spondylolysis of L5, state whether such condition constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). (i) If the Veteran’s transitional vertebra with spondylolysis of L5 is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. (ii) If the Veteran’s transitional vertebra with spondylolysis of L5 is considered a disease, did it increase in severity in service? If so, is there is clear and unmistakable evidence that such increase in severity is due to the natural progress of the condition? (B) For each diagnosis other than transitional vertebra with spondylolysis of L5, to include discogenic changes, mild canal stenosis, and spondylolisthesis, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset during, or is otherwise related to, the Veteran’s military service, to include his in-service complaints of back pain, to include after passing out in December 1966, and/or his duties involving working in maintenance? (C) If arthritis is diagnosed, did such manifest within one year of the Veteran’s separation from service in March 1967, i.e., by March 1968? If so, please describe the manifestations. In offering any opinion, the examiner should consider the Veteran’s reports in regard to the onset of his back pain during service, and a continuity of such symptomology after service. A rationale should be provided for each opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel