Citation Nr: 21002775 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-36 263 DATE: January 14, 2021 ORDER The claim for service connection for hepatitis C is denied. REMANDED The claim for a rating in excess of 10 percent for right knee disability prior to November 22, 2010, and in excess of 30 percent from January 1, 2012, is remanded. The claim for a total disability rating based on individual unemployability (TDIU) prior to January 7, 2014 is remanded. FINDING OF FACT The Veteran’s hepatitis C was not incurred during active duty and is not otherwise related to military service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned in January 2018. A transcript is of record. In June 2018, the Board remanded the claims for further development. 1. Service connection for hepatitis C Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303. Generally, to establish entitlement 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). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service treatment records do not show a diagnosis of hepatitis C during active duty. The Veteran has not asserted the onset of symptoms in service. The objective medical evidence shows a diagnosis of hepatitis C in 1997, many years after service. In connection with his August 2009 claim for service connection, the Veteran initially contended that he developed hepatitis C as a direct result of a knee surgery during service. At a VA examination in June 2010, he reported that he received a tattoo at age 11 and also had blood exposure during service from putting hand pressure on a gunshot wound of a soldier. He denied all other risk factors, including sharing razors. The Veteran has since asserted additional possible means of exposure. He contends that his hepatitis is due to either exposure to blood from wounded and dead bodies he handled during his Vietnam service, or from immunizations in service with air guns. The June 2010 VA examiner listed the most likely causes of the Veteran’s hepatitis C as: “(1) tattoo at age of 11 years not sterile conditions, (2) blood exposure/contact in Vietnam per Veteran statement.” The examiner opined that the hepatitis C was not likely due to the Veteran’s in-service right knee surgery since no blood transfusion was required as per operative report. In June 2016, a private nurse practitioner opined that the Veteran’s current hepatitis C was “secondary to and/or related to his service-connected blood exposure from use of Air Guns during vaccination during his active military service.” The nurse practitioner listed possible risk factors for hepatitis C, including IV drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure while a healthcare worker, tattoos, body-piercing, acupuncture, and shared toothbrushes or razor blades. She then stated that the Veteran denied all other risk factors other than shared razor blades and air injectors during service. A VA examination was conducted in June 2019. The examiner opined that the Veteran’s hepatitis C was less likely than not related to events the occurred in military service. The examiner provided a detailed and lengthy rationale. He noted that the Veteran was diagnosed with hepatitis C approximately 25 years after separation. He noted that the Veteran reports applying direct hand pressure to a fellow soldier that was shot until being relieved by a medic while serving in Vietnam, but that he was unable to locate any STRs indicating such. On the prior VA C&P examination in June 2010 there is no mention of the Veteran having an open would or that blood was introduced to him while in military service. Moreover, the overall prevalence of hepatitis C in the U.S. with non-incarcerated individuals is approximately 1.5 percent. The examiner further noted that the Veteran reports receiving jet gun inoculations in military service, but the incidence of developing hepatitis C from jet gun injections is extremely low. Although plausible, the Veteran has other possible risk factors as he received a non-sterile tattoo at age 11. Additionally, upwards to 20 percent of patients who contract hepatitis C have no documented risk factor. Although the Veteran was diagnosed with hepatitis C in 1996 in the community, he has not had the initial risk assessment at that time furnished to the regional office. There is no mention of possible blood transfer in the past medical history by that treating clinician. The examiner noted that the letter written by the nurse practitioner of the Veteran advocate of Michigan on June 16, 2016 was reviewed. It contained several premises that are not confirmed by medical records. Moreover, it predominately focuses on the possible association of jet gun injections and hepatitis C. There is that possibility, but it fails to mention the other possibilities that would be more likely. There still remains no consensus of evidence in medical literature or in the medical community that supports a causal relationship between jet gun inoculations and the future development of hepatitis C that would outweigh the other factors. Essentially, there are several risk factors contributing to the development of the claimed condition. It would be impossible for anyone to attribute one of these risk factors as being causative unless that risk factor is overwhelmingly associated. Such is not applicable in this case. The Board finds the June 2010 and June 2019 VA nexus opinions probative because the examiners considered the entire medical history of the disability and the Veteran’s relevant lay statements. The examiners’ conclusions were based on findings that the Veteran did not have a blood transfusion in service, and that he had a significant risk factor in the form of a tattoo at age 11 that made it less likely that his hepatitis C was related to an inservice cause. The June 2019 examiner fully considered all the Veteran’s reported risk factors and concluded that it was less likely than not that his hepatitis C was related to an in-service cause. The examination reports and opinions provided the Board a clear description of all relevant data points necessary to evaluate this claim. The June 2016 private nurse practitioner’s opinion was fundamentally flawed as it did not acknowledge the Veteran’s history of tattoo at age 11 in the discussion of his risk factors for developing hepatitis C. For that reason, the Board finds the private opinion less persuasive than the VA opinions. The Veteran’s lay statements are insufficient evidence in this regard as he is not an epidemiologist or shown to have the medical knowledge required to offer an opinion as to whether hepatitis C exposure occurred during in-service air gun inoculations, or was otherwise related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The preponderance of the competent, credible evidence is against finding that the Veteran’s hepatitis C having developed in service or is otherwise causally related to service. 38 C.F.R. § 3.303. In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim that doctrine is not applicable. Entitlement service connection for hepatitis C is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. The claim for a rating in excess of 10 percent for right knee disability prior to November 22, 2010, and in excess of 30 percent from January 1, 2012, is remanded. 2. The claim for TDIU prior to January 7, 2014 is remanded. The appeal was remanded in June 2018 for additional development. There has not been substantial compliance with the Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the prior remand, the Board noted that the Veteran underwent VA examinations for his knee in June 2010 and in April 2014. The Board directed that, regarding functional loss for the right knee, the examiner was to express two opinions. One opinion should consider the Veteran’s current functional loss. The second opinion should be a retrospective opinion that considers functional loss dating back to August 2008. In providing these opinions, the examiner was to indicate whether pain, weakness, fatigability, or incoordination cause additional functional impairment with repeated use overtime or during flare-ups and assess such additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. An examination was provided in June 2019. Review of the examination report shows that the examiner did not provide an adequate assessment regarding functional loss as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner stated that “since 2008 the patient’s functional impairment cannot be assessed with accuracy. Although one would assume his functional impairment would improve as the patient had formerly had end stage, bone on bone degenerative joint disease in 2008 and had a right [total knee replacement] in 2010, the post-op orthopedic records are either absent or do not address functional impairment. Based on the C&P examination inf 4/4014 the patient has had a reduction in [range of motion]. However, ROM does not correlate with functional impairment. Moreover, the patient has a co-morbid left knee condition.” The Board notes that the examiner did not provide an adequate assessment of the functional loss since 2008. Specifically, the examiner did not focus on the pre-surgery state of the Veteran’s knee; the June 2010 VA examination (conducted four months prior to the total knee replacement) was not addressed. Moreover, when an examiner states that he or she cannot offer an opinion without resort to speculation, that opinion is adequate only when it is clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Thus, an addendum opinion is necessary. The Board will defer consideration of the TDIU issue pending the above development. The matters are REMANDED for the following action: Return the claims file to the VA examiner who conducted the June 2019 examination of the Veteran’s right knee and request that the examiner provide an addendum opinion. The examiner is asked to express two opinions. One opinion should consider the Veteran’s current functional loss. The second opinion should be a retrospective opinion that considers functional loss dating back to August 2008. In providing these opinions, the examiner must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment with repeated use overtime OR during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. The examiner must estimate any additional functional impairment in terms of the degree of additional range-of-motion loss based on the evidence of record and the Veteran’s lay descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. This is especially necessary for the retrospective opinion. To be clear, for that opinion, the Veteran should be asked to give a retrospective lay description of such characteristics and the examiner should consider his response in formulating the opinion. In this regard, the examiner must specifically address the functional loss present for the period from 2008 up to the Veteran’s total knee replacement in November 2010. Reference to the findings on VA examination in June 2010 is necessary. A complete rationale must be provided for all opinions expressed. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.