Citation Nr: 20037034 Decision Date: 05/29/20 Archive Date: 05/29/20 DOCKET NO. 18-15 990 DATE: May 29, 2020 ORDER Entitlement to service connection for a liver disease, to include hepatitis C, is granted. Entitlement to service connection for a kidney disease to include as secondary to a liver disease is granted. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a fracture of the right little finger is remanded. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran’s liver disease, to include hepatitis C, is related to the Veteran’s active duty service. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran’s kidney disease is caused by or aggravated by the Veteran’s liver disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for liver disease, hepatitis C, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for entitlement to service connection for kidney disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Army from January 1973 to December 1975. This matter is on appeal from a September 2016 rating decision. The Veteran was afforded a hearing with the undersigned Judge in November 2019. A transcript of the hearing has been associated with the claims record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Liver disease The Veteran contends that his liver disease is related to his active duty service. Review of the Veteran’s medical treatment record shows treatment and diagnosis for hepatitis C. At the Veteran’s December 2016 VA examination, the examiner diagnosed the Veteran with hepatitis C. An October 2019 abdominal ultrasound found “question early changes of cirrhosis” in the Veteran’s liver. As such, the Board finds the Veteran with a current disability. Review of the Veteran’s service treatment records (STRs) do not show any complaints, treatments or diagnoses for liver disease to include hepatitis C. Review of the Veteran’s medical treatment record shows the Veteran receiving treatment for hepatitis C. In January 2015 the Veteran reported that he was diagnosed with hepatitis C in August 2014. In an April 2015 hepatology clinic visit, the Veteran reported the approximate date of his hepatitis C infection occurred “probably mid-1970s” and the method of transmission was that he contracted the infection while working as a medic during his active duty service. The treating physician noted the Veteran had no past diagnosis for cirrhosis and denied any past ascites, encephalopathy or esophageal bleeding. The Veteran stated that he had never had a liver biopsy performed. The physician did note that the Veteran’s thrombocytopenia “is concerning for possible cirrhosis.” In a June 2015 ultrasound of the Veteran’s abdomen, the Veteran’s liver was found to be normal in size, shape and echogenicity. In a March 2016 statement, the Veteran stated that he volunteered as a medic starting January 1973 and worked in various hospitals. The Veteran stated that he was exposed to blood products in addition to getting “numerous inadvertent needle sticks.” The Veteran also stated that he underwent a surgical procedure during service for his varicose veins. The Veteran stated that he now has hepatitis C and diabetes as well as kidney failure. The Board notes the Veteran’s DD214 form shows the Veteran’s military occupation specialty (MOS) code indicated the Veteran’s title as a medical specialist which the civilian equivalent was a nurse’s aide. The Veteran was afforded a December 2016 VA examination. The VA examiner diagnosed the Veteran with hepatitis C. The Veteran stated that his hepatitis C from accident needle sticks as a medic drawing blood that occurred 2 to 3 times during service. The Veteran also stated that during a 1974 elective surgery for vein stripping was another possible cause of his hepatitis C. The examiner found it less likely than not that the Veteran’s hepatitis C was incurred in or caused by his service. The examiner stated that the Veteran’s STRs or separation examination did not mention any incidents of accidental needle sticks. The examiner next stated that a history for the Veteran’s vein stripping was not a likely transmission mode for hepatitis C. The examiner noted that in “15 percent of cases of hepatitis C, no etiology is found”; there was 40 years gap between the Veteran’s reported exposure and his diagnosis for hepatitis; and concluded there was no temporal relationship between the Veteran’s alleged exposure and his diagnosis. In the Veteran’s September 2017 NOD, the Veteran stated his hepatitis C was due to his surgery on his varicose veins that occurred in 1974. The Veteran stated that during the procedure he was given a blood transfusion which caused his hepatitis C. In an October 2019 ultrasound of the Veteran’s abdomen, the Veteran’s liver was found to be “slightly lobulated …question early changes of cirrhosis measure 15.87 cm in length.” At the Veteran’s November 2019 hearing, the Veteran testified that in the service he worked as an ambulance driver and medical specialist. The Veteran stated that he was exposed to blood from other soldiers while doing field work and described an incident when a soldier was injured and bleeding excessively. The Veteran stated that as the first line medic in treating trauma, he did not have gloves and had to put pressure on the wound while getting blood all over him and others before the injured was evacuated. The Veteran also stated that he may have also been exposed to blood while stitching up other soldier’s injuries in the hospital’s dispensaries. The Veteran also stated that he also had some accidental needle sticks or pokes three to five times while doing this. The Veteran’s representative stated for the record that review of the Veteran’s record of the 1974 surgery for his varicose veins did not mention the Veteran ever receiving a blood transfusion. The Veteran’s representative cited a medical web article discussing the risk factors for hepatitis C and noted the Veteran denied injecting drugs, having HIV, receiving tattoos or piercings, getting blood transfusions or clotting factors, imprisonment, or born to a woman with hepatitis C. The Veteran’s representative then stated that “the number one risk factor listed for hepatitis C is a healthcare worker who has been exposed to infected blood which may happen if an infected needle pierces you skin” and that this was the most reasonable explanation for the Veteran’s hepatitis C. The Board notes the Veteran submitted the cited medical web article in support of his claim and testimony to be associated with the claims record. The Veteran also testified that an October 2019 abdomen scan noted some sclerosis measuring 15 cm on his liver. In a submitted January 2020 physician letter titled “potential sequelae of chronic hepatitis C infection”, the physician noted although the Veteran had successfully treated his hepatitis C to undetectable levels, he was still undergoing continued surveillance as “cirrhosis of the liver and hepatocellular carcinoma are well known long-term sequelae from chronic hepatitis C infection.” In a submitted March 2020 physician letter, the physician found that “risk factors traditionally associated with hepatitis C are not applicable to the Veteran” and that it was probable that the Veteran’s chronic hepatitis C may be a service connected injury relating to the time the Veteran served as a medic and exposed to blood and a couple needle sticks in the field. After review of the competent and credible evidence of record, including the medical treatment records, the Board finds the evidence is at least in equipoise.The Veteran has a current diagnosis for a liver disease to include hepatitis C. Although the Veteran’s STRs do not show record of complaints or treatment for a hepatitis C, the Veteran has competently and credibly reported events or incidents where he may have been exposed to blood and hepatitis C to include his work as a medic in service treating other soldiers’ injuries in the field or in hospital dispensaries. Review of the record does not show evidence that contradicts the Veteran’s lay assertions. The Veteran’s DD214 form indicates the Veteran’s MOS as a medical specialist. The March 2020 private physician opined the Veteran’s hepatitis C may relate to his duties as a medic and exposure to blood and needles. Therefore, resolving reasonable doubt in the Veteran’s favor, the Veteran also had an inservice occurrence related to his hepatitis C. The Board considers the positive and negative opinion of record and assigns both opinions high probative value. Both examiners consider the Veteran’s in-service duties and complaints in forming an opinion. As the evidence is in relative equipoise, the Veteran’s claim prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Accordingly, service connection for a liver disease is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. Kidney disease to include as secondary to liver disease The Veteran contends that his kidney disease is related to his active duty service to also include as secondary to liver disease. Review of the Veteran’s medical treatment record shows diagnosis and treatment for kidney disease to include chronic kidney disease, nephrotic syndrome, and progressive renal failure. As such, the Board finds the Veteran with a current disability. Review of the Veteran’s STRs do not show any complaints, treatments or diagnosis for a kidney disease. Review of the Veteran’s medical treatment record shows in November 2013 the Veteran recalled having a kidney biopsy 30 years ago and was told that he may have nephrotic syndrome. The treating physician gave an impression of chronic renal insufficiency and noted the Veteran reported a diagnosis of nephritic syndrome going back 20 years. In March 2014 the Veteran was diagnosed with stage three chronic renal failure. In July 2014 the Veteran stated that when he was 20, he was diagnosed with nephrotic syndrome and was given a kidney biopsy; however, the Veteran was unable to recall the final diagnosis resulting from the biopsy. The treating physician gave a diagnosis of chronic interstitial nephritis. In January 2015 the Veteran was noted with a history of stage four kidney disease. In a May 2015 renal visit, the Veteran was noted with a history of chronic interstitial nephritis of unknown etiology and noted the Veteran’s report of nephrotic syndrome when he was 20. In a June 2015 ultrasound of the Veteran’s abdomen, cysts were noted on the Veteran’s kidney. In a March 2016 statement, the Veteran stated that he believes that the hepatitis C incurred in service “has devastated my kidneys and shortened my lifespan.” At the Veteran’s December 2016 VA examination, the Veteran claimed his chronic kidney disease as secondary to hepatitis C. The VA examiner found that it was less likely than not that the Veteran’s claimed chronic kidney disease was related to his hepatitis C, opining that the Veteran’s “chronic kidney disease most likely due to history of nephrotic syndrome, which occurred post-service.” In the Veteran’s September 2017 NOD, the Veteran stated that his chronic kidney disease was secondary to hepatitis C. At the Veteran’s November 2019 hearing, the Veteran testified that his kidney disease is the result of his hepatitis C because he “have no other viable reason…or no other way of figuring out how I came across this.” In a submitted December 2019 physician letter, the physician stated that the Veteran currently had stage five chronic kidney disease and nearing end-stage renal disease. The physician noted the Veteran had a background history of idiopathic nephrosis with definitive therapy discovered in his early 20s. The physician stated that the Veteran had a history of hepatitis C along with monoclonal paraproteinemia and cryoglobulinemia; the physician stated that these factors placed the Veteran at “relatively high risk for associated hepatitis C-related kidney disease.” The physician found that the Veteran’s hepatitis C associated cryoglobulinemia may have contributed to the progression of his now advanced chronic kidney disease. In a March 2020 physician letter, the physician stated that various kidney foundations and journals have published medical literature discussing the relationship between hepatitis C and kidney disease. The physician noted that these publications have found an association between hepatitis C and increased risk or causation for kidney disease. The physician opined that after review of the Veteran’s chart and literature that it was more likely that the Veteran’s long-term infection with hepatitis C “can reliably be said to have led to his Chronic Kidney Disease and subsequent Renal Failure.” After review of the evidence of record, the Board finds the evidence to be relative equipoise. The Veteran has a current disability for kidney disease. As addressed above, the Veteran is service connected for a liver disease. Submitted December 2019 and March 2020 physician letters opined that the Veteran’s hepatitis C infection was related to or led to his current kidney disease. As such, resolving reasonable doubt in favor of the Veteran, the Board finds service-connection for kidney disease is warranted. REASONS FOR REMAND The Board finds that remand is warranted for additional development before adjudication of the Veteran’s appeal. The Veteran asserts that his low back condition and fracture of the right little finger were related to his active duty service. In the Veteran’s submitted September 2017 NOD, the Veteran stated that he fractures his right-hand little finger while serving in Germany. The Veteran also stated that sometime between May and June 1973 while on garbage detail, the Veteran was pinned by an ambulance, causing an injury to his back. At the Veteran’s November 2019 hearing, the Veteran testified that he fractured his right-hand little finger in January 1973 but did not report the injury because he did not want to be “recycled.” The Veteran stated that the he does not experience pain with the finger but noted that it was disfigured. The Veteran also testified that sometime in August 1973 he was pinned by an ambulance driver while getting the garbage in the motor pool and has since suffered from intermittent back problems. VA examinations are needed when the evidence indicates that the claimed disabilities may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Review of the claims record does not show there was a VA examination held regarding the nature and etiology of the Veteran’s claimed fracture of the right-hand little finger and his low back condition. As such, the Board finds remand is warranted for examination and opinion on the nature and etiology of the Veteran’s claimed fracture of the right-hand little finger and his low back condition. The matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records pertinent to the Veteran’s fracture of the right-hand little finger and his low back condition and associate those documents with the claims file. 2. After any additional records are associated with the claims file, Veteran should be scheduled for a VA examination to the determine the nature and etiology of his claimed right-hand little finger and his low back condition. The examiner must review the claims file in conjunction with the examination. The examiner must provide medical opinions as to the following: (a.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran’s fracture of the right-hand little finger is etiologically related to the Veteran’s active duty service? (b.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran’s low back condition is etiologically related to the Veteran’s active duty service? (c.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). (d.) If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided. (e.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. (f.) If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (g.) The examiner should provide a complete rationale for any opinion provided, and if the examiner is unable to provide any opinion request, then the examiner should state so and why. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.