Citation Nr: 19193859 Decision Date: 12/13/19 Archive Date: 12/13/19 DOCKET NO. 16-02 971 DATE: December 13, 2019 ORDER Entitlement to service connection for arthritis of the left knee is denied. Entitlement to service connection for hepatitis B, to include chronic liver damage, is denied. Entitlement to service connection for hepatitis C, to include chronic liver damage, is denied. REMANDED Entitlement to service connection for arthritis of the right knee is remanded. Entitlement to a total disability rating on the basis of individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s arthritis of the left knee was not caused by active service. 2. The preponderance of the evidence of record is against finding that the Veteran’s hepatitis B or any related disability was incurred during his active military service or as a result of an in-service injury, disease, or illness. 3. The preponderance of the evidence of record is against finding that the Veteran’s hepatitis C or any related disability was incurred during his active military service or as a result of an in-service injury, disease, or illness. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the left knee have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 2. The criteria for entitlement to service connection for hepatitis B, to include chronic liver damage, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for hepatitis C, to include chronic liver damage, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to June 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2019, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. The issue of entitlement to service connection for a lower back issue has been raised by the record in the Veteran’s January 2019 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over any lower back claim, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred during service, or, if the injury or disease preexisted such service, a showing that the injury or disease was aggravated therein. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for arthritis of the left knee is denied. The Veteran contends that his left knee arthritis is due to his active service, particularly while he was stationed at an airborne base. The Veteran’s service treatment records (STRs) show the Veteran to be sound upon entrance and separation, and do not show any treatment for a left knee condition or arthritis in service. Arthritis is a chronic disease pursuant to 38 U.S.C. § 1101 and 38 C.F.R. §§ 3.307, 3.309(a). For arthritis, the presumptive period is one year. 38 U.S.C. §§ 1112; 38 C.F.R. §§ 3.307(a)(3). The claims file shows the first diagnosis of arthritis in his March 2015 VA knee conditions examination when x-ray imaging revealed mild degenerative changes of the medial joint compartment without acute bony abnormality. There is no documented evidence of arthritis in the one year following service. Therefore, the presumption that the Veteran incurred arthritis of his left knee in service is not for application. 38 C.F.R. §§ 3.307, 3.309(a). The March 2015 VA examiner provided a negative nexus opinion regarding his left knee arthritis after an in-person examination and claims file review. The examiner noted the Veteran’s lay contentions of bilateral knee pain and popping. The examiner reasoned that because there was no specific injury or knee issues while the Veteran was on active duty, and no evaluation or treatment for knee issues since discharge from service, it was less likely than not that the Veteran’s current knee condition is related to his service. In his April 2015 Notice of Disagreement, the Veteran stated that he was a paratrooper and performed a total of 139 jumps within a three-year period which contributed to his knee injuries. In his January 2016 Substantive Appeal (VA Form 9), the Veteran stated that serving as a paratrooper placed stress on his body and that the cartilage between the bones is compressed, which causes massive deterioration much more than normal use or everyday activity. At his January 2019 hearing, the Veteran stated that he was at an airborne base and jumped out of airplanes. He stated that his knees popped a lot and they crack. He further stated that he first noticed knee pain while stationed in Hawaii and that the pain has been continuous since service. In reaching its determination in this case, the Board has considered the Veteran’s lay opinion. Notably, at his January 2019 hearing, the Veteran stated that he has experienced pain in his knees continuously since service. The Veteran is certainly competent to describe lay observations of pain and injury, but he does not possess the training or credentials to competently diagnose a current condition or to ascertain the etiology of such condition. His lay contentions, therefore do not constitute competent evidence and thus lack probative weight in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the Veteran has not submitted any contrary medical opinions, the March 2015 VA knee conditions examination is the most probative medical opinion of record. Accordingly, for the reasons described above, the preponderance of the evidence weighs against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for hepatitis B and C, to include chronic liver damage, is denied. The Veteran contends that his diagnosed hepatitis B and C are due to his active service. The Veteran’s STRs are silent for treatment regarding any liver conditions. The Veteran was first informed of the presence of hepatitis B core antibodies in his blood in 1996 by the American Red Cross, which is 8 years after service. The Veteran was diagnosed with hepatitis C in November 2011, which is over 20 years after service. In a July 2014 Statement in Support of Claim, the Veteran stated that his hepatitis could have come from service because he has only had broken foot and hernia surgeries after service. He further stated that he was not tested for hepatitis at all at discharge, and thus he could have had the disease then. He further stated that because he has been a good Samaritan, he may have come into contact with blood occasionally. Lastly, he stated that he is not a drug user, drinker, smoker, or high-sex participant. In his July 2015 Notice of Disagreement, the Veteran stated that he has hepatitis from the distribution gun dispenser used by the Department of Defense for inoculation, and he was not tested for hepatitis on separation. In his January 2016 VA Form 9, he asserted that his hepatitis could have been dormant in his system because the military did not test for it when he separated. At his January 2019 hearing, the Veteran stated that he was notified by the Red Cross of his hepatitis B in 1996, and, during hernia surgery in 2011, a doctor told him he had hepatitis C. He stated that he was told that, in order to have liver damage, it had to be from excess consumption of alcohol between ages 18 to 20. He further noted that when he was in service his barracks were across the street from the enlisted members club, and it seemed like he was drinking every day. The only evidence of record supporting the Veteran’s claims is his own lay opinion. While the Veteran is competent to report observable symptoms, he is not competent to provide an opinion linking diagnosed hepatitis B or C to active service, as it is a disease of the liver that requires medical expertise and is outside the realm of common knowledge of a layperson. Accordingly, the Veteran’s lay contentions as to the date of onset of the diagnosis of hepatitis B or C do not represent competent evidence and lack probative value for the purposes of the decision at hand. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges that the Veteran has not been afforded a VA examination for his claims. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination is necessary if the record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability; (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, there is no evidence of an event, injury, or disease in service, or of a presumptive disease during the pertinent presumptive period, and the Veteran has not referenced any. There is also no competent nexus opinion of record. Therefore, the second McLendon factor has not been met, and no VA examination is necessary. Currently, there is no competent evidence linking a current diagnosis of the claimed disabilities on appeal to the Veteran’s military service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for hepatitis B or C is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claims are denied. REASONS FOR REMAND 1. Entitlement to service connection for arthritis of the right knee is remanded. At the March 2015 VA knee conditions examination, the examiner provided a nexus opinion regarding the Veteran’s left knee arthritis. The opinion is confusingly worded; the etiology question presented by the VA examiner specifically addressed the left knee, but some of the phrasing in the rationale addressed bilateral knees. The concluding sentence was that “it is less likely than not that the veteran’s current knee condition is related to his active service.” The Board is unable to confidently conclude that this opinion was intended to apply to both knees. Accordingly, the matter must be remanded to obtain an addendum opinion addressing the etiology of the Veteran’s right knee arthritis. See 38 C.F.R. § 3.159(c)(4). 2. Entitlement to TDIU is remanded. The Board notes that a favorable decision on the claim for service connection for right knee arthritis could impact the Veteran’s claim for TDIU, and, thus, the issue of entitlement to TDIU is inextricably intertwined with the right knee arthritis claim to be addressed on remand. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: Obtain an addendum opinion from the clinician who provided the March 2015 VA medical opinion or, if unavailable, another appropriate medical professional. The claims file must be made available to and reviewed by the reviewer. A note that it was reviewed should be included in the opinion. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s arthritis of the right knee, or any other right knee disability, had onset during or was caused by service. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexis B. Markeson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.