Citation Nr: 21003103 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-09 282 DATE: January 19, 2021 ORDER Entitlement to service connection for loss of sense of smell is denied. Entitlement to a compensable rating for Hepatitis C is denied. Entitlement to a compensable rating for Hepatitis B is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s loss of sense of smell began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s Hepatitis C was not manifested by fatigue, malaise, anorexia, incapacitating episodes (with symptoms such as nausea, vomiting or arthralgia) or near-constant debilitating symptoms. 3. The Veteran’s hepatitis B disability resolved with no residuals. CONCLUSIONS OF LAW 1. The criteria for service connection for loss of sense of smell are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an initial compensable rating for Hepatitis C have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7354. 3. The criteria for entitlement to an initial compensable rating for Hepatitis B have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7345. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to July 1986, and from November 1978 to July 1986. The Veteran testified at a July 2019 Travel Board hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (Board) in November 2019 for additional development. It now returns for further appellate review. 1. Service connection The Veteran contends that he is entitled to service connection for loss of smell because he “believes his loss of smell may be due to in-service exposure to artillery and concussion noises.” See September 2020 Appellate Brief ; see also Hearing Transcript. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Relevant Facts and Analysis Direct service connection The Veteran’s VA treatment records confirm he was diagnosed with anosmia (loss of sense of smell). See i.e., April 2015 VA Primary Care Note in CAPRI received February 2020. Although the February 2020 VA examiner was unable to confirm a diagnosis of loss of sense by testing because the Veteran had a cold, the examiner found the Veteran’s symptoms included complete loss of sense of smell. See February 2020 VA Loss of Sense of Smell Disability Benefits Questionnaire (DBQ). Accordingly, the Board finds that the first element of service connection, a current disability, has been met. The second element of service connection, which is an in-service occurrence, has also been met because the Veteran testified that his loss of sense of smell began during service. See Hearing Transcript. He further testified that his loss of sense of smell could be related to exposure to artillery and concussion noises. Id. Alternatively, the Veteran contends that his loss of sense of smell was caused by medications he used for his service-connected Hepatitis B and Hepatitis C conditions. Id. Thus, the question for the Board is whether there is a nexus between Veteran’s current loss of sense of smell and his active service. The January 2020 VA examiner opined that the Veteran’s loss of sense of smell was less likely than not related to active service. See January 2020 VA Medical Opinion DBQ. He reasoned that “Veteran’s exposure to artillery and concussion noises, in active service doesn’t cause loss of sense of smell.” Instead, the examiner attributed the Veteran’s loss of sense of smell to his “long history of cocaine and substance abuse shown in his record…. Cocaine gets snorted from the nose and that lead [t]o damage of olfactory bulb/ends in the nose leading to loss of sense of smell.” Id. The Board notes that the Veteran’s VA treatment records confirm a history of substance/cocaine abuse in 2009. See February 2009 VA Treatment Record. Additionally, an April 2013 VA infectious disease follow up visit noted that the Veteran tested positive for cocaine use in 2012. See April 2013 VA Infectious Disease Note in CAPRI received February 2020. The January 2020 VA examiner also provided a negative secondary service connection nexus opinion. See January 2020 Medical Opinion DBQ. The examiner’s rationale for his negative secondary nexus opinion was the same as the direct nexus opinion, namely the Veteran’s confirmed history of cocaine use caused his loss of sense of smell. Id. The Board notes that the Veteran’s claimed loss of sense of smell has been linked to his substance abuse by the January 2020 VA examiner. Thus, to the extent the Veteran is claiming service connection for any disability flowing from a substance abuse disorder, willful misconduct such as drug or alcohol abuse is a bar to establishing service connection. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.1 (m), (n), 3.301(c)(3), (d); Allen v Principi, 237 F.3d 1368. Thus, based on the foregoing, the Board concludes that, while the Veteran has a diagnosis of loss of sense of smell, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease because there is no in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). There is no evidence of a link between the Veteran’s current disability and an in-service occurrence. The January 2020 VA examiner opined that the Veteran’s loss of sense of smell was caused by the Veteran’s documented substance abuse. While the Veteran believes his loss of sense of smell is related to active service, the Board finds great probative value in the January 2020 VA examiner’s opinion because the opinion was supported by a rationale and is consistent with the medical evidence of record which show that the Veteran did not report loss of sense of smell, until 2009 which is 23 year after service. Notably, the Veteran’s loss of sense of smell was attributed to his substance abuse. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may favor competent medical nexus evidence over lay statements offered by Veteran). The Board has also considered the Veteran’s statements including his testimony in support of the claim. His statements are competent and credible evidence regarding the symptoms he experienced. He believed that that his loss of sense of smell was related to his in-service exposure to artillery and concussion noise. However, his lay statements regarding the etiology of his loss of sense of smell is not competent for establishing a nexus. Notably, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 425 (2011). However, as to the specific issue in this case, the etiology of his loss of sense of smell it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). In weighing the evidence of record against his claim, there is no evidence of complaints of loss of sense of smell during active service or in medical treatment records after he left service. As such, the claim fails for lack of medical nexus. Accordingly, direct service connection for loss of sense of smell is denied for lack of a medical nexus between the Veteran’s active service and his current loss of sense of smell. Secondary service connection Turning to the next theory of entitlement, secondary service connection, the Veteran meets the first element of secondary service connection a current disability because he was diagnosed with loss of sense of smell. The second element is also met because the Veteran is service connected for Hepatitis B and Hepatitis C. Unfortunately, the claim fails on a secondary basis as the third element of secondary service connection, a medical nexus between the current disability and the service-connected disability, has not been met. The January 2020 VA examiner opined that the Veteran’s loss of sense of smell was not caused, related or aggravated by his service-connected Hepatitis B and Hepatitis C disabilities based on a review of the record. See January 2020 VA Medical Opinion DBQ. The examiner opined that the Veteran’s loss of sense of smell was not aggravated by his asthma because the Veteran’s loss of sense of smell was related to his documented substance abuse. Id. The Board acknowledges that the Veteran contends that his loss of sense of smell was caused by his service-connected Hepatitis B and Hepatitis C to include medications for those conditions. However, the record does not demonstrate that the Veteran has special training in or acquired any medical expertise. The Board thus finds that the Veteran is not competent to state that his loss of sense of smell is related to his Hepatitis B and Hepatitis C. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board may “weigh absence of contemporaneous medical evidence against the lay evidence of record”). As discussed further below, the Veteran was not prescribed any medications for Hepatitis B and Hepatitis C, as such, there is no such evidence that medications could have caused the Veteran’s loss of smell. Thus, the Board finds that the VA examiner’s opinion has more probative weight. Therefore, the Board concludes that the preponderance of the evidence is against the claim and the benefit-of-the-doubt rule does not apply. Accordingly, the claim is denied. Increased Rating 2. – 3. Hepatitis C and Hepatitis B The Veteran seeks an initial compensable rating for his service-connected Hepatitis B and Hepatitis C. See October 2012 VA Form 21-526b, Veteran’s Supplemental Claim. Legal Criteria The Veteran’s Hepatitis C has been rated under Diagnostic Code (DC) 7354 as noncompensable. 38 C.F.R. § 4.114, Diagnostic Code 7354. The Veteran’s Hepatitis B disability has been evaluated as non-symptomatic under DC 7345. The Board notes that the rating criteria for both DC 7345 and DC 7354 are the same. Under DC 7345, a noncompensable evaluation is warranted when the condition is non-symptomatic. A 10 percent evaluation is warranted for intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms, such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent evaluation is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction and continuous medication, or; incapacitating episodes (with symptoms, such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent evaluation is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms, such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent evaluation is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly or; incapacitating episodes (with symptoms, such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. The highest rating of 100 percent is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114. Also, evaluate sequelae, such as cirrhosis or malignancy of the liver under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under DC 7354 and under a diagnostic code for sequelae. Id. at Note 1. For the purposes of evaluating conditions under DC 7354, “incapacitating episode” means period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. at Note 2. To clarify these criteria, “anorexia” is the lack or loss of the appetite for food. Dorland’s Illustrated Medical Dictionary 97 (31st ed. 2007). “Malaise” is a vague feeling of bodily discomfort and fatigue. Id. at 1112. “Hepatomegaly” is the enlargement of the liver. Id. at 857. Factual Background As noted above, the Veteran filed a claim for entitlement service connection for Hepatitis B and Hepatitis C in October 2012 and disagreed with the initial rating decision assigned. See May 2013 Notice of Disagreement. Thus, the relevant temporal focus is from October 1, 2012 to the present. 38 C.F.R. § 3.400. The Veteran was provided a VA examination in May 2013 in connection with his claim. See May 2013 Hepatitis, Cirrhosis, and Liver Conditions DBQ. The examiner confirmed the Veteran’s diagnosis of Hepatitis B and Hepatitis C. She indicated that the Veteran’s conditions did not require continuous use of medication. Id. The Veteran did not currently have symptoms of fatigue, malaise, anorexia, nausea, or incapacitating episodes. Id. The examiner also indicated that the Veteran did not have any signs or symptoms attributed to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. Id. The Veteran’s VA treatment records during the appeal period show that the Veteran was not taking any medications for his Hepatitis B and Hepatitis conditions. See i.e., April 2014 VA Primary Care Note in CAPRI received February 2020 (showing prescribed medications were Lisinopril, Docusate, and Ferrous Gluconate). In April 2014, the Veteran endorsed nausea and abdominal pain but denied jaundice, increased or new right upper quadrant (RUQ) pain. Id. His VA treatments also indicate stable weight. Specifically, in October 2013, the Veteran weighed 169 pounds, in April 2014 he weighed 165 pounds, in April 2015 he weighed 156 pounds, and in June 2016 he weighed 168 pounds and denied any weight loss. See CAPRI received February 2020. The Veteran testified during the July 2019 Board hearing that he experienced symptoms of fatigue, nausea, loss of energy, constant low back pain, and sleepiness. See Hearing Transcript. He also stated his disabilities increased in severity since the last VA examination. Accordingly, the Board remanded the claim in November 2019 to provide the Veteran a VA examination to assess the current severity of his service-connected Hepatitis B and Hepatitis C disabilities. Pursuant to the November 2019 Board remand, the Veteran underwent a VA examination in February 2020. See February 2020 VA Hepatitis, Cirrhosis, and Other Liver Conditions DBQ. The examiner indicated that the Veteran had a current diagnosis of Hepatitis C. He endorsed lack of energy related to his Hepatitis C. The examiner found that the Veteran did not require continuous medication to control his condition. Id. He also found that the Veteran did not have any associated symptoms of fatigue, malaise, anorexia, nausea, arthralgia, or weight loss attributable to Hepatitis C. The Veteran did not have any incapacitating episodes due to Hepatitis C during the past 12 months. Finally, the examiner remarked that the Veteran’s Hepatitis B was resolved. Id. Analysis Based on the foregoing, the Board finds that the Veteran’s Hepatitis C has been non-symptomatic throughout the appeal period. The evidence of record indicates that the Veteran has received regular medical treatment for his Hepatitis C disability. However, there was no indication that he was prescribed any medications for his Hepatitis C. Notably, throughout the VA treatment records, during numerous clinic visits over the appeal period, the Veteran has consistently denied having symptoms such as vomiting, diarrhea, arthralgia, fever, chills, and RUQ pain (chest and abdominal). Although, the Veteran endorsed symptoms of fatigue and nausea, the Veteran did not exhibit any signs or symptoms of anorexia. Notably, the Veteran’s weight was generally stable, and he denied any weight loss. The Board also notes there are no indications in the record of any incapacitating episodes of any length of time due to the Veteran’s hepatitis C. Finally, the May 2013 and February 2020 VA examiners both found that the Veteran’s Hepatitis C did not require continuous medication, and was asymptomatic with no symptoms of nausea, fatigue, malaise, anorexia, vomiting, arthralgia, or weight loss. Specifically, during the February 2020 VA examination, the Veteran only reported the symptom of lack of energy due to his Hepatitis C. The Board also acknowledges the Veteran’s testimony, as to both his Hepatitis B and C that he experienced symptoms of fatigue, nausea, loss of energy, constant low back pain, and sleepiness. See Hearing Transcript. Notably, he is competent to report these symptoms. However, even considering these symptoms, the Veteran’s rating would still be noncompensable where there is no evidence of anorexia, which would allow for a 10 percent rating. Notably, diagnostic codes 7345 and 7354, which are successive diagnostic codes, both require intermittent fatigue, malaise, AND anorexia, in the absence of evidence incapacitation episodes (not shown and as previously discussed). The Court has held that, where the rating criteria are written in the conjunctive, to establish entitlement to a particular rating, a claimant must demonstrate each of the criteria listed in the rating. Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Thus, because the evidence of the record more closely approximates that the Veteran’s hepatitis C is non-symptomatic, the Board finds that an initial compensable rating is not warranted. The Board finds a compensable rating is also not warranted for the Veteran’s service-connected Hepatitis B for the following reasons. First, the February 2020 VA examiner stated that the Veteran’s Hepatitis B condition was resolved. Second, as discussed above regarding the Veteran’s Hepatitis C, the necessary symptoms for a compensable rating have not been met for either Hepatitis B or Hepatitis C disabilities. As noted previously, these disabilities are rated under DC 7345 and DC 7354, which have the same rating criteria. However, the Veteran’s Hepatitis B disability did not manifest in incapacitating episodes, or fatigue, malaise, and anorexia. Nor did it require continuous medications. Thus, the Board finds that a noncompensable rating adequately reflects the Veteran’s resolved Hepatitis B disability. The Board acknowledges that a Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence (equipoise) on the merits. But, because the fair preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not applicable in this case. Accordingly, the Veteran’s claims for an initial compensable rating for his service-connected Hepatitis B and Hepatitis C disability are therefore denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 U.S.C. § 3007(b). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.