Citation Nr: 20077161 Decision Date: 12/04/20 Archive Date: 12/04/20 DOCKET NO. 15-44 589 DATE: December 4, 2020 ORDER Service connection for hepatitis C is denied. Service connection for a sleep disorder, other than sleep apnea, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. A diagnosis of hepatitis C has not been shown during the course of the appeal, or at any time proximate to the filing of the claim for service connection. 2. A diagnosis of a sleep disorder, other than sleep apnea, has not been shown during the course of the appeal, or at any time proximate to the filing of the claim for service connection. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a sleep disorder, other than sleep apnea, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from September 1969 to December 1970, including a tour of duty in the Republic of Vietnam. He was awarded the Vietnam Service Medal, among other decorations, for this service. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2013 (hepatitis) and August 2014 (sleep dysfunction, obstructive sleep apnea) rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Houston, Texas and St. Paul, Minnesota, respectively. In June 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. The appeal originally contained a claim for entitlement to service connection for a for a sexual dysfunction, including erectile dysfunction. On remand, service connection for erectile dysfunction was granted in a December 2019 rating decision. Because that decision represents a full grant of the benefit sought, the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board remanded the claims for service connection for hepatitis C and a sleep disability to the Agency of Original Jurisdiction (AOJ) in May 2019 to conduct additional development of the record, including obtaining a VA medical opinion. After review of the record, the Board finds there has been substantial compliance with the May 2019 remand orders and the claims are properly before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded a claim for service connection for obstructive sleep apnea to the Agency of Original Jurisdiction (AOJ) in May 2019 to conduct additional development of the record, including obtaining a VA medical opinion. After review of the record, the Board finds there has not been substantial compliance with the May 2019 remand orders and that additional remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). 1. Hepatitis C. The Veteran contends that service connection is warranted for hepatitis C. After review of the evidence, both lay and medical, the Board finds that service connection for hepatitis C is denied. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez, 259 F.3d. 1356 (2001). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim or shortly before. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain, 21 Vet. App. 319, 321 (2007). The Veteran's service treatment records are silent for any treatment for, or diagnosis of, hepatitis C. However, the Veteran does not contend that hepatitis began during service, rather that it was incurred in service from the administration of vaccinations with an air gun and presented many years later. See June 2018 Board Hearing Transcript. An April 2003 referral note showed increased liver enzymes and “[+] HepC.” A September 2003 blood test revealed high levels of AST and ALT in the blood indicating the presence of virus-specific nucleic acid sequences. The file also contains an undated referral associated with these private treatment records indicated the Veteran should be placed on interferon for hepatitis C and an accompanying prescription receipts for Rebetol, Ribavirin and PEG-Intron dated December 2003 to June 2004. In February 2012, the Veteran filed for service connection for hepatitis. In November 2013, the Veteran underwent an examination to determine the etiology of any hepatitis disability. The Veteran reported a general screening in the 1980’s and that he was diagnosed with hepatitis C. He further reported he underwent 6 months of antiviral treatment with resolution of the infection to date. The VA examiner provided positive nexus between Hepatitis and the Veteran's service based on the Veteran's reports. However, the examiner further indicated that October 2013 liver enzyme testing results were well within normal limits but were positive for exposure of past disease. The VA physician indicated there was no active disease. In November 2019, the Veteran underwent a VA infectious disease examination to determine the etiology of any liver disabilities, to include hepatitis C. The Veteran indicated he was diagnosed with hepatitis C approximates 2002-2003. The VA examiner indicated the Veteran did not have a current diagnosis of hepatitis C. The rationale provided was that the claims file showed no chronic symptoms of diagnosis of hepatitis C and that during the 2013 VA examination the Veteran tested negative for hepatitis C. In addition to finding no current diagnosis, the VA examiner added that current literature on air jet guns have found no direct link between their use and contraction of hepatitis C and cited to medical treatise evidence. Finally, the VA examiner added that current medical literature stated that those born between 1945 and 1965 were at 5 times the risk of contraction of hepatitis C and that the Veteran was born in 1950. The lay testimony of record has been inconsistent regarding the diagnosis or onset of hepatitis C. During the November 2013 VA examination the Veteran indicated that the onset was the 1980’s. During an October 2015 psychiatric outpatient appointment, the Veteran reported he was treated for hepatitis C in 2010. During a June 2018 Board hearing, the Veteran indicated that he could not remember when he was diagnosed with hepatitis C but that it was several years after service. He indicated he was put on medication that was causing harm and after reevaluating, his physician said it seemed the hepatitis C had “cleared up.” The Veteran indicated no treatment since that time and that testing conducted by the VA said it seemed it was no longer present. Upon questioning, the Veteran indicated that he was diagnosed between 2010 and 2012. Given the inconsistencies the Board finds the Veteran has been an unreliable historian regarding the diagnosis date of hepatitis C. However, the preponderance of objective medical evidence including prescriptions and treatment records submitted by the Veteran show the diagnosis was some time in 2003 and the Board therefore finds those medical records more probative. As previously stated, a necessary element for establishing entitlement to service connection is the existence of a current disability. Brammer, 3 Vet. App. 223, 225 (1992). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain, 21 Vet. App. 319, 321 (2007). Here, the preponderance of the evidence shows the Veteran was diagnosed with hepatitis C around 2003 and has not been treated or tested positive for active hepatitis C since. Blood tests during the appeal period, which is over a decade after the diagnosis, have been negative for active hepatitis C. Therefore, at no time during the appeal period has the Veteran been diagnosed with a hepatitis C disability. However, even if the Board were to resolve all doubt in the Veteran’s favor and find a current diagnosis of hepatitis C existed, the preponderance of the evidence would still be against the claim. Specifically, the Veteran has indicated his only in-service risk factor for the contraction of hepatitis C was vaccination by an air jet gun. The November 2019 VA examiner opined that the Veteran’s 2003 hepatitis C diagnosis was less likely than not incurred in service. This finding was supported with current literature on air jet guns that found no direct link between their use and contraction of hepatitis C. The VA examiner added that current medical literature stated that those born between 1945 and 1965 were at 5 times the risk of contraction of hepatitis C and that the Veteran was born in 1950. In contrast, the Board finds the November 2013 VA examination inadequate because it was based solely on lay evince from the Veteran. Specifically, the 2003 medical records showing the diagnosis of hepatitis C were part of the record at the time of that examination and the VA examiner still indicated that the onset was in the 1980’s. As such, the Board finds the November 2013 VA examination was based on an inaccurate factual predicate and therefore is less probative. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the November 2019 VA examiners opinions more probative than both the lay evidence and November 2013 VA examiner’s opinions. Specifically, the November 2019 VA examiner’s opinions provided a detailed rationale and adequately took into consideration the objective medical evidence of record and current medical literature. In contrast, as previously stated, the lay testimony of record has been inconsistent and the November 2013 VA medical opinion ais inconsistent with the medical evidence of record. As such, the November 2019 VA examiner’s opinions provide a better basis for the Board to form a fully informed decision. After a full review of the record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for a hepatitis C disability for the reasons discussed above and that the 2003 diagnosis of hepatitis C was less likely than not incurred in or caused by service, including vaccination by air gun. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Sleep Disorder. The Veteran contends he has a current sleep disability (separate from obstructive sleep apnea), as a result of military service. After review of the evidence, both lay and medical, the Board finds that service connection for a sleep disability is not warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez v. Principi, 259 F.3d. 1356 (2001). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim or shortly before. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In February 2014, the Veteran filed for service connection for sleep dysfunction. The Veteran's service treatment records are silent for any complaints of, or treatment for, a sleep disorder. In his September 2014 notice of disagreement, the Veteran indicated that the sleep disability was caused by nightmares, anxiety, and jitteriness. During the June 2018 Board hearing, the Veteran reported difficulty getting and staying asleep. In December 2019, the Veteran underwent a VA examination to determine the etiology any current sleep disabilities. The VA examiner indicated that the Veteran did not have a diagnosed sleep disability. The VA psychologist supported this finding by indicating that the Veteran’s complaints of sleep impairment are symptoms of his service-connected PTSD and are subsumed under that diagnosis. The VA psychologist added that a separate diagnosis for a sleep dysfunction was not warranted or appropriate. The Board notes the Veteran's lay testimony of sleep difficulties, including difficulty falling and staying asleep. The Board finds that while the Veteran is competent to relate the symptoms that he experienced at any time, including sleeplessness, under the specific facts of this case, he is not competent to diagnose a current and separate sleep disability from other mental health disabilities, because such an opinion requires specific medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too "medically complex" for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"). As previously stated, a necessary element for establishing entitlement to service connection is the existence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, at no time during service or during the appellate period has the Veteran been diagnosed with a sleep disability other than sleep apnea. While the Veteran has symptoms of nightmares, anxiety, and jitteriness and trouble getting to sleep and staying asleep, the record reflects these symptoms are associated with his already service-connected posttraumatic stress disorder. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As noted above, the examiner has clearly indicated the symptoms are part of the PTSD and do not qualify as a separate and distinct sleep disorder. After a full review of the record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for a sleep disability for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran contends service connection is warranted for obstructive sleep apnea. After review of the evidence, a remand is necessary to allow the Board to make a fully informed decision. On remand, medical opinions were obtained on the etiology of the currently diagnosed obstructive sleep apnea. After review of the opinions provided, a remand for a new opinion is necessary. Specifically, the VA examiner failed to address the February 2018 private medical opinion and the Veteran’s reports of in-service snoring. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Associate any VA treatment records since November 2019 with the Veteran's electronic claims file. 2. After completion of the above-specified development, obtain an addendum medical opinion on the etiology of the Veteran's obstructive sleep apnea. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the current sleep apnea had onset in service or is etiologically directly related to active service? The examiner must discuss the Veteran's reports of severe snoring in service. b) Is it at least as likely as not (50 percent probability or greater) that the current sleep apnea is caused by the Veteran's service-connected disabilities, including PTSD? The examiner must discuss: Dr. P.T.'s February 2018 opinion that the Veteran's obstructive sleep apnea was associated with his service-connected PTSD. c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that the sleep apnea is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, including PTSD? If the VA examiner opines that the sleep apnea is aggravated by the PTSD, he/she should indicate the degree of disability before aggravation and the current degree of disability. A rationale should be given for all opinions and conclusions rendered. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.