Citation Nr: 20027054 Decision Date: 04/18/20 Archive Date: 04/18/20 DOCKET NO. 12-26 516 DATE: April 18, 2020 ORDER Service connection for hepatitis C is granted. Service connection for liver disease other than hepatitis C is denied. Service connection for a left shoulder disorder is denied. Service connection for a low back disorder is denied. REMANDED Entitlement to service connection for a sleep disorder due to exposure to ionizing radiation and/or secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A VA physician has linked the Veteran’s hepatitis C to events during service. 2. The Veteran has no current liver disorder other than hepatitis C. 3. A left shoulder disorder was not present in service or within one year thereafter and is not otherwise etiologically related to the Veteran’s service. 4. A low back disorder was not present in service or within one year thereafter and is not otherwise etiologically related to the Veteran’s service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2019). 2. The criteria for service connection for liver disease other than hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2019). 3. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 4. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This case was previously before the Board in November 2017. In September 2017, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge. A January 2018 rating decision denied service connection for right ear hearing loss and denied a compensable rating for service-connected left ear hearing loss. The Veteran filed a notice of disagreement, and a statement of the case was issued in April 2020 which continued the denials. The record does not reveal that the Veteran has submitted a substantive appeal as to the issues.   Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran appeared before the undersigned Veterans Law Judge in September 2017 and delivered sworn testimony at a hearing in Montgomery, Alabama. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2019); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior November 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2019). In addition, service connection for certain chronic diseases, including arthritis may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2019); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hepatitis C First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Although recent records and tests have shown no hepatitis C, records such as a June 2010 VA treatment record indicate that hepatis C was on the current problem list. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service treatment records (STRs) reveal hepatitis C risk related factors, including venereal disease. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that hepatitis C is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In a March 2017 opinion, a VA physician stated that a review of the Veteran’s STRs indicated “at least nine separate episodes of sexually transmitted disease during military service which is consider high risk sexual activity, and places one at increased risk of acquiring hepatitis C.” The examiner that this more likely than not caused his hepatitis C. The Board assigns significant probative value to this opinion as it is based upon review of the relevant records and includes a supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hepatitis C is warranted. Liver disease other than hepatitis C The evidence, including the March 2017 and April 2019 VA examination reports, does not reveal any liver disease other than hepatitis C. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, service connection for liver disease other than hepatitis C is not warranted. Left shoulder and low back At the September 2017 Board hearing the Veteran indicated that his left shoulder and low back disability had resulted from being pinned underneath a jeep “when it rolled on top of me” in 1973 during service. He stated his left shoulder and low back symptoms had worsened since service. An April 2019 VA examiner indicated that the Veteran’s current disorders of the low back and left shoulder were not likely related to the Veteran’s service. Among other things, the April 2019 VA examiner noted the Veteran’s own statements that he had injured his low back and his left shoulder during a lifting incident at a friend’s place many years subsequent to service. The Board finds that service connection for a low back disorder and a left shoulder is not warranted. First, there are current diagnoses of lumbar spine degenerative joint disease and left shoulder osteoarthritis, as noted on the April 2019 VA examination. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event but no injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An August 1973 STR indicates that the Veteran was involved in a jeep accident. The August 1973 STR noted an injury to the left knee and left wrist, but there was no mention of the low back or left shoulder. The Veteran’s July 1976 service separation examination report indicates that the Veteran’s spine and upper extremities were clinically evaluated as normal. The Board thus finds that the second element of service connection is met. Third, the Board finds that the evidence of record does not support a finding that the disabilities are related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Post-service, the earliest notation of a low back disorder (2005) or left shoulder disorder (2012) was years following service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (noting that a gap in time weighs against service connection). Additionally, the Board finds that the April 2019 VA examiner’s opinion is of great probative value. The opinion contains a comprehensive review of the Veteran’s medical records and lay statements (including the Veteran’s statement that he experienced pain after a 2008 lifting incident at a friend’s house) and offered a well-reasoned explanation for the opinion provided. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting the central issue in determining probative value is whether the examiner was informed of the relevant facts in rendering a medical opinion). Thus, the evidence supports a finding that a neck disorder is not related to active service. The Veteran is competent to state that he has or has had symptoms of a low back and left shoulder disorder. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Veteran, however, has not been shown to possess the requisite medical training, expertise, or credentials needed to provide an etiology for orthopedic disorders, which is not capable of lay observation and is the development of an internal orthopedic condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the Veteran’s statements as to continuity of low back and left shoulder symptoms since service have not been consistent and thus any statements regarding continuity of the low back and left shoulder in this regard are not credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence). Although the Veteran has indicated that his low back and left shoulder problems began with the 1973 jeep incident, the Veteran’s STRs contain no such complaints, despite the fact that the Veteran served approximately three years subsequent to the 1973 jeep incident. From August 1973 to his separation in October 1976 the Veteran sought medical attention on many occasions, and yet never mentioned any symptoms related to his low back or left shoulder. Had he been experiencing low back or left shoulder problems subsequent to August 1973, the Board finds that he would have mentioned such to the service medical personnel. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Finally, and prior to the filing of his claim, the Veteran indicated that he had injured his low back and left shoulder decades following service. In view of the evidence to the contrary, the Board does not find that the Veteran’s lay statements are not sufficient to establish etiology or continuity of symptomatology for the low back or left shoulder disorder. Accordingly, service connection for a low back disorder or left shoulder disorder is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder due to exposure to ionizing radiation and/or secondary to service-connected PTSD is remanded. Remand is required for an examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent 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) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). At his September 2017 Board hearing the Veteran asserted that he has a sleep disorder that is related to his service-connected PTSD. In May 2018, subsequent to his Board hearing, the Veteran was diagnosed with sleep apnea. In a February 2017 VA examination report, and examiner found there was not a separate sleep disorder diagnosis, and that the sleep difficulty were common symptoms of PTSD. VA PTSD examination reports, such as the one dated in August 2012, have noted that the Veteran’s PTSD symptoms include chronic sleep impairment. A February 2014 VA mental health treatment note indicated that the Veteran’s PTSD resulted in initial, middle, and early morning awakening insomnia. Accordingly, remand is required for an adequate opinion. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of any sleep disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) each diagnosed sleep disorder, to include sleep apnea, had onset in, or is otherwise related to, active service. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) each diagnosed sleep disorder, to include sleep apnea, was caused and/or aggravated by service-connected PTSD. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Nelson, 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.