Citation Nr: 21000067 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-58 057 DATE: January 4, 2021 ORDER Entitlement to service connection for tuberculosis is denied. Entitlement to service connection for Hepatitis C is denied. Entitlement to VA benefits under 38 U.S.C. § 1151 for residuals of brain surgery is denied. Entitlement to a disability rating in excess of 10 percent for left ankle disability is denied. FINDINGS OF FACT 1. The evidence does not demonstrate a link between the Veteran’s military service and his subsequent diagnosis of tuberculosis. 2. The evidence does not show that the Veteran had Hepatitis C in service or that he has any risk factors for Hepatitis C related to his time in service; there is no nexus shown between current diagnosis and active service. 3. There is insufficient evidence to establish that the Veteran received treatment at VA for an aneurysm in the period of 1979 to 1981, nor is there evidence of the Veteran’s health condition prior to such treatment which might be different from his current disability picture. 4. The Veteran’s left ankle disability is not shown to be marked in nature or to approximate such a level of severity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tuberculosis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for Hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to VA benefits under 38 U.S.C. § 1151 for residuals of brain surgery have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 4. The criteria for entitlement to a disability rating in excess of 10 percent for left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1976 to October 1977. Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. 1. Entitlement to service connection for tuberculosis The Veteran seeks service connection for tuberculosis, which he asserts is the result of his military service. Service treatment records show that he was treated for chest pain when breathing and a nonproductive cough in March 1976. (See STR, 10/31/2013.) He was also treated for upper respiratory infection with headache, fever, and a cough which produced green sputum. He was given a temporary duty restriction for acute respiratory disease. (See STR, 10/31/2013.) At the time of service separation in August 1977, the Veteran was noted to have a negative tuberculosis tincture test and a negative chest X-ray. The record shows that the Veteran was treated for tuberculosis from October 1998 to April 1999 while he was incarcerated in the state of Louisiana. (See Medical Treatment Record, 07/03/2013.) The record also shows that a chest X-ray taken in October 1997 by the Department of Corrections was negative. Records from 2002 show that he tested negative for tuberculosis in February 2001, although he had a history of a positive test in the past. (See Medical Treatment Records, 11/27/2019.) A VA treatment note in March 2018 gave a history of tuberculosis treated 9 years previously. (See VAMC Other Output, 06/06/2019.) The Board has considered all of the evidence of record and finds that there is no basis for service connection for tuberculosis. Specifically, there is no evidence of tuberculosis in service, with negative test results being shown at the time of service separation. In addition, as recently as 1997, the Veteran’s personal medical records showed no evidence of tuberculosis on chest X-ray. While the Veteran was later diagnosed and treated for tuberculosis in 1998 and 1999, there is nothing in the record which links this diagnosis and treatment to his military service 20 years previously. The Board does note that the Veteran was treated for upper respiratory symptoms in service but finds that these were not related to his subsequent diagnosis of tuberculosis based on the negative findings for up to 20 years post service separation. The Board notes that the Veteran has not provided a clear explanation of why he believes his tuberculosis to be related to his military service, nor has he produced any evidence of such a relationship. Without a showing of an incident in service or a link between the diagnosis of tuberculosis after service and the Veteran’s period of service, the requirements for a successful claim of service connection have not been met. 2. Entitlement to service connection for Hepatitis C The Veteran seeks service connection for Hepatitis C, asserting that the condition was manifested in service and has been present since. Recognized risk factors for contracting hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialyses, intranasal cocaine use, high risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. See VBS Fast Letter 211B (98-110) (November 30, 1998). According to VA Fast Letter 04-13 (June 29, 2004), hepatitis C is spread primarily by contact with blood and blood products. The highest prevalence of hepatitis C infection is among those with repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). Id. The Fast Letter further states that occupational exposure to hepatitis C may occur in the health care setting through accidental needle sticks. Id. Thus, a veteran may have been exposed to hepatitis C during the course of his duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. Id. According to the Fast Letter, there have been no case reports of hepatitis C being transmitted by an air gun injection. Id. Nevertheless, it is biologically plausible. Id. The Fast Letter concludes that it is essential that the examination report upon which the determination of service connection is made include a full discussion of all modes of transmission and a rationale as to why the examiner believes that a particular mode of transmission was the source of a veteran’s hepatitis C. Id. Treatment records from the Veteran’s period of incarceration in the state of Louisiana show that he was found to be Hepatitis C virus positive in May 2001. (See Medical Treatment Records, 11/27/2019.) VA treatment records from December 2008 reflect the Veteran’s report that he had not been tested or diagnosed with Hepatitis C. (See VAMC Other Output, 06/06/2019.) The provider noted that, after listening to the risk factors for Hepatitis C, the Veteran stated that he was not at risk for Hepatitis C. In March 2011, he tested positive for Hepatitis C antibodies; in January 2012 he also tested positive for Hepatitis A and Hepatitis B antibodies. In July 2013, the Veteran was noted to have Hepatitis C and that treatment had been attempted in the 1980s with pills. At the VA examination in August 2013, the Veteran stated that while he was in service, he was told that he had ‘traces of hepatitis’ and was given medication to take for it. (See VA Examination, 08/13/2013.) He remembered feeling very tired in service. He underwent an umbilical hernia repair in 1976 prior to entering the military and was treated once in service in March 1977 for abdominal pain which the provider felt was probably viral, although a notation was made that hepatitis should be ruled out as a diagnosis. A urine analysis test at that time was negative for bile. The Veteran’s symptoms at the time of the VA examination were fatigue, malaise, nausea, vomiting, arthralgia, and right upper quadrant pain. The examiner noted the Veteran’s risk factors as including a blood transfusion or use of blood products prior to 1992 and aneurysm surgery in 1981. The examiner offered the opinion that the Veteran’s Hepatitis C was less likely than not the result of his military service based on a lack of evidence of any type of hepatitis in service, including when using urine screening, and the first evidence of a diagnosis of Hepatitis C being in 2011. (The Board notes this typographical error- the first diagnosis was actually 2001; in any event, even if the examiner believed this was the date of onset the Board does not find this misunderstanding materially effects the basis for the conclusions reached, as even 2001 is over two decades past service separation and the fact remains unchanged that there were no indications of hepatitis in service, as accurately noted by the examiner.) VA treatment records from May 2016 show that he had a diagnosis of Hepatitis C as well as cirrhosis of the liver. (See CAPRI, 09/22/2016.) At that time, his provider had a serious discussion with him regarding the possibility for treatment of these conditions and the importance of stopping his consumption of alcohol if he wished the treatment to be successful. At the Board hearing in April 2019, the Veteran testified that he was treated for jaundice in service. (See Hearing Testimony, 04/11/2013.) He stated that he has been treated for his Hepatitis since his surgery at VA in 1980 or 1981 and that he was still taking medication prescribed then. After considering all of the evidence of record, the Board finds that the Veteran’s claim of service connection for Hepatitis C must be denied. Specifically, the Veteran has pointed to his treatment for abdominal pain in service and a possible diagnosis of hepatitis in service as the basis for his current diagnosis of Hepatitis C. However, the Board finds that this is not consistent with the evidence, which listed hepatitis as a diagnosis to be ruled out and showed a negative result on his urine testing. While the Veteran has asserted that he has had hepatitis since his time in service, this is likewise not consistent with the record. The Veteran’s separation examination did not reflect a diagnosis of hepatitis and no further evidence of hepatitis was shown in the record until 2001, during the Veteran’s incarceration. The Board acknowledges that a lack of treatment for hepatitis during this time frame is not conclusive evidence that the condition was not present. However, the Board does find it logical and persuasive evidence that a condition as serious as hepatitis, if diagnosed and not resolved in service, would have necessitated some medical treatment and would have appeared in the Veteran’s medical records at some point during the nearly 25 years between treatment in service and diagnosis during incarceration. Therefore, the Board concludes that the Veteran’s Hepatitis C was not diagnosed or manifested in service and continually present since that time. This conclusion is supported by the opinion of the VA examiner in August 2013 who relied on the urine test results in service as showing no evidence of hepatitis at that time. The Board acknowledges that there are several strains of Hepatitis, including Hepatitis C, Hepatitis A, and Hepatitis B. Indeed, the Veteran’s medical records indicate that he may have had all of these strains of the condition. However, there is no information of record to link these conditions to the Veteran’s military service. As noted in the VBS Fast Letter, there are multiple risk factors for contracting Hepatitis C, including intranasal drug use, receipt of blood transfusion or blood products, work in a medical field, or high-risk sexual activity. Notably, the Veteran has not asserted that he has any of this risk factors associated with his military service. Nor has he at any point referenced vaccination through the use of airgun injection in service as the source of his infection. Indeed, in December 2008, the Veteran denied having any of the risk factors for Hepatitis C and to have denied ever testing positive or being treated for the condition, although records subsequently received show he was treated for it while incarcerated in 2001. Based on the Veteran’s denial of any of the risk factors for Hepatitis C and his failure to assert any means of contracting the virus in service, apart from the treatment already addressed, the Board finds no reason to belabor the point. As there is no evidence to support a finding of direct causation of Hepatitis C related to the Veteran’s military service, nor any allegation of any risk factor for the virus during the Veteran’s service, the criteria for service connection have not been met and the claim is denied. 3. Entitlement to VA benefits under 38 U.S.C. § 1151 for residuals of brain surgery The Veteran seeks VA benefits under 38 U.S.C. § 1151, asserting that he underwent brain surgery at a VA facility in either 1979 or 1981 and that as a result he sustained brain damage due to an embolism. Specifically, the Veteran asserts that since the surgery he has suffered from epilepsy and brain dysfunction. A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability... were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361 (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of “hospital care, medical or surgical treatment, or examination” furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). Thus, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be “caused by” the hospital care or medical treatment received from VA, but also must be “proximate[ly] cause[d]” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151 (a)(1). In evaluating this claim, the Board must begin with the question of the VA treatment or procedure claimed to be the root cause of the Veteran’s current disability. Unfortunately, this is where the claim fails. In the Veteran’s VA Form 9, filed in September 2016, he cites 1979 as the date of his brain surgery at VA, from which he claims disabling residual effects. (See Form 9, 9/27/2016.) At the Board hearing in April 2019, he testified that his surgery for the aneurysm occurred in either 1979 or 1980, after his separation from active duty service, at the VA facility in New Orleans. (See Hearing Transcript, 04/11/2019.) Efforts made by VA to locate the medical records for this treatment have been futile. (See VA 10-7131, 6/17/2019.) The Veteran has been notified of the inability to obtain these records and asked to provide any records he might have relating to this treatment. (See Correspondence, 08/05/2019.) The Board acknowledges that the records in question may have been rendered unobtainable by either VA or the Veteran as a result of Hurricane Katrina in 2005. However, in order to prevail on a claim for benefits under 38 U.S.C. § 1151, there must be evidence of treatment or other services provided by VA, as well as some evidence of the Veteran’s condition prior to such treatment, in order to demonstrate that a disability may have resulted. In this case, that most basic of evidence simply has not been located. Without it, the elements of a claim have not been met and the Veteran’s appeal must be denied. 4. Entitlement to a disability rating in excess of 10 percent for left ankle disability The Veteran seeks a higher disability rating for his left ankle disability currently rated as 10 percent disabling based on moderate limitation of motion. The Veteran asserted at the Board hearing that he experienced ankle pain and stiffness, as well as frequent episodes of turning his ankle, which were sufficient to warrant a higher disability rating. The Veteran’s left ankle disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”. See www.merriam-webster.com/dictionary/marked. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). At the VA examination in August 2013, the Veteran stated that he did not experience flare-ups and his ankle strength and stability were shown to be normal. (See VA Examination, 08/13/2013.) Range of motion testing showed plantar flexion to 30 out of 45 degrees, with pain at 30 degrees, and dorsiflexion to 15 out of 20 degrees, with pain at 15 degrees. After repetitive testing, those ranges were reduced to 20 degrees of plantar flexion and 10 degrees of dorsiflexion. The Veteran reported that when he walked for more than 20 feet, he experienced ankle pain and frequently had to stop to rest. He also noted that his ankle hurt after standing for more than one hour. At the VA examination in March 2020, the Veteran reported pain flare-ups to 10 out of 10 in intensity when he walked for extended periods, occurring one to two days per week. (See C&P Exam, 03/11/2020.) He stated that he could not walk for one to two miles anymore and had difficulty going up stairs in his home. Range of motion testing showed plantar flexion to 20 out of 45 degrees and dorsiflexion to 15 out of 20 degrees. He had tenderness to palpation and pain with weight-bearing. Although he reported possible instability in his ankle, none was evident on testing. He reported using an ankle brace as needed and a cane on a regular basis. Functional impairment was listed as pain with prolonged standing, walking, and stair climbing. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left ankle disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, stiffness, and episodes of giving way of the left ankle. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the testimony at the Board hearing that the Veteran turned his ankle about half the days he used it or that he sometimes could not walk at all would not result in symptoms more nearly approximating marked limited motion or limitation of motion so distinctive or emphasized that it would approximate marked limited motion. In finding that the Veteran’s limitation of motion is not marked, the Board has considered the dictionary definition of the term as one factor. The Board notes that even at the most recent VA examination in March 2020, the Veteran’s dorsiflexion was 15 out of 20 degrees, which represents 80 percent of the full range of motion, and his plantar flexion was 20 out 45 degrees, or slightly less than half of the range of motion. This range of motion is not consistent with one of distinctive or emphasized character but is more consistent with a median level of disability. Moreover, while not binding on the Board, the definition as set out in the M21-1 Manual is specific, describing marked as 10 degrees or less of plantar flexion and 5 degrees or less of dorsiflexion. As noted, the language of the M21-1 Manual is not binding on the Board, but the Board does consider it to be persuasive. Notably, this range of motion is consistent with the recommendations of not one, but two, independent panels of medical expert, in 2003 and 2017 respectively, who advised utilization of these measurements as replacement values for the codified “moderate” and “marked” terms in proposed revisions of the rating criteria. See 68 FR 6998 and 82 FR 35719. The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Specifically, the evidence does not show ankylosis of the ankle or malunion of the bones or evidence of surgery on the ankle, which would be required for use of a different set of rating criteria. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for left ankle disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.