Citation Nr: 21065464 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-13 809 DATE: October 26, 2021 ORDER Entitlement to an effective date earlier than June 29, 2010, for the assignment of a 10 percent rating for the Veteran's service-connected right knee disability is denied. Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a kidney disability, to include as secondary to hepatitis C, is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for the service-connected right knee disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. A June 1974 rating decision granted service connection for a right knee disability and awarded a noncompensable (0 percent) rating; the Veteran did not timely appeal the June 1974 rating decision and the decision became final. 2. An August 2008 rating decision denied entitlement to a compensable rating for the service-connected right knee disability; the Veteran did not timely appeal the August 2008 rating decision and the decision became final. 3. On June 29, 2010, the Department of Veterans Affairs (VA) received an increased rating claim for the Veteran's right knee disability and in a March 2011 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 10 percent rating for the Veteran's right knee disability, effective June 29, 2010. 4. It is not factually ascertainable than an increased rating is warranted for the Veteran's service-connected right knee disability in the year prior to June 29, 2010, and the record contains no unadjudicated formal or informal increased rating claim prior to June 29, 2010. 5. The preponderance of the evidence is against finding that the Veteran's hepatitis C was manifest during active service or is related to service, to include any risk factors therein. 6. The preponderance of the evidence is against finding that the Veteran's kidney disability was manifest during active service or is related to service. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 29, 2010, for the assignment of a 10 percent rating for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.157(b)(1) (effective prior to March 24, 2015); 3.400, 4.71a, Diagnostic Code (DC) 5003. 2. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1101, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a kidney disability, to include as secondary to hepatitis C, have not been met. 38 U.S.C. §§ 1101, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1971 to December 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2011, June 2011, and May 2014 rating decisions issued by a VA Regional Office (RO). In March 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In August 2016, February 2018, and October 2020, the Board remanded the issues to the RO for further development. As an initial matter, the Board notes that in a June 2021 rating decision, the AOJ granted service connection for right hip trochanteric pain syndrome. As this is considered a full grant of the issue of service connection sought on appeal, the issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, as noted in the October 2020 Board remand, the Veteran has timely expressed disagreement with both the effective date of the assignment of his 10 percent rating for his service-connected right knee disability as well as the 10 percent rating assigned. See July 2011 Notice of Disagreement (NOD). Therefore, as the Board must read a veteran's submissions liberally and consider the full context within which those submissions are made, the Board has recharacterized the Veteran's appeal, initially characterized as an earlier effective date claim, as both a claim of entitlement to an effective date earlier than June 29, 2010, for the award of a 10 percent evaluation for the Veteran's service-connected right knee disability and a claim of entitlement to a rating in excess of 10 percent for the service-connected right knee disability to more accurately reflect the issues on appeal. 1. Entitlement to an effective date earlier than June 29, 2010, for the assignment of a 10 percent rating for the Veteran's service-connected right knee disability The Veteran seeks an effective date earlier than June 29, 2010, for the assignment of a 10 percent rating for his service-connected right knee disability. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. With respect to claims to reopen, the effective date for an award of benefits will be the date of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The effective date for increased rating claims will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim for increase. 38 C.F.R. § 3.400(o)(2). In other words, if the increase occurred within the one year prior to the date of the claim for increase, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase ratings (previously found in 38 C.F.R. § 3.157) and revised 38 C.F.R. § 3.400(o)(2). Id. The amendments are only applicable to claims and appeals filed on or after March 24, 2015 and, as such, are not applicable in the present case. In the present case, the Board concludes that the preponderance of the evidence is against an effective date earlier than June 29, 2010, for the assignment of a 10 percent rating for the Veteran's service-connected right knee disability. In other words, the Board finds that it is not factually ascertainable prior to June 29, 2010, that the symptomatology attributable to the Veteran's service-connected right knee disability had worsened such that an earlier effective date for a 10 percent rating is warranted. First, the Board notes that when there is a prior final decision, as is the case here, the effect of such finality is to preclude an award of an effective date prior to that time. The Veteran has not yet raised a motion of clear and unmistakable error (CUE) or otherwise challenged the finality of either the June 1974 rating decision, which granted service connection for a right knee disability and assigned a noncompensable rating, or the August 2008 rating decision, which continued the noncompensable rating for the Veteran's right knee disability. Here, as the Veteran did not appeal the June 1974 or August 2008 rating decisions and no new and material evidence was received within the applicable one-year period, these decisions became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b). After the final, August 2008 rating decision, VA did not receive an increased rating claim for the Veteran's right knee disability until June 29, 2010. As noted above, in a March 2011 rating decision, the RO increased the rating for the Veteran's right knee disability to 10 percent, effective from the date of his claim, June 29, 2010. Although the Veteran argues that an increase in his disability arose prior to his June 29, 2010, increased rating claim, the Board does not find that an earlier effective date is warranted in this case. In this regard, the Board has not identified any communication from the Veteran which may be interpreted as a prior unadjudicated increased rating knee claim. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). The Veteran has also not identified any specific document contained within the claims file that constitutes an increased rating claim which was overlooked or misconstrued by the AOJ. In short, although the record does document an earlier increased rating claim, this claim was finally resolved, and, thus, provides no basis for an earlier effective date, to include from his discharge from service, for the 10 percent rating ultimately awarded. Notably, an application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. See Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). The Board has also considered whether entitlement is warranted at any point during the one-year period prior to the June 29, 2010, claim; however, the evidence does not establish that an increase in the Veteran's right knee disability preceded the June 29, 2010, claim by one year or less. In this regard, there are neither lay statements nor treatment records dated during the one-year period prior to June 29, 2010, that demonstrate a cognizable increase in his disability under the applicable rating criteria. Specifically, the Board finds that the evidence of record between June 29, 2009, and June 29, 2010, does not demonstrate limitation of motion, painful motion, or functional loss of the right knee. Instead, a January 2010 VA treatment record reflects the Veteran's report that his hypertension and knee condition were his most serious medical conditions. However, as this treatment record does not specifically address the Veteran's right knee disability, including any associated symptoms, the Board does not find that this report reflects increased knee symptoms. Therefore, the record does not show that it is factually ascertainable that an increase in the Veteran's right knee disability occurred within the one year prior to the Veteran's June 29, 2010, increased rating claim. In reaching this decision, the Board has considered the potential applicability of the former 38 C.F.R. § 3.157(b)(1) and whether constructive receipt of VA medical records dated prior to June 29, 2010, constitute informal increased rating claims for the Veteran's service-connected right knee disability such that an earlier effective date could be assigned. See 38 C.F.R. § 3.157(b)(1)(effective prior to March 24, 2015). Under the former 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. In Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013), the Court held that the former 38 C.F.R. § 3.157(b)(1) requires that a report of examination or hospitalization indicate that the Veteran's service-connected disability worsened since the time it was last evaluated because, "[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1)," creating an unnecessary and unwarranted adjudicative burden on VA. The Court also has held that, in the absence of sufficient manifestation of an intent to apply for benefits for a particular disease or an injury, a document merely providing medical information in and of itself is not an informal claim for VA benefits. See Ellington v. Nicholson, 22 Vet. App. 141 (2007). With respect to evidence from a private physician or layman in particular, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim when the evidence furnished by or on behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2). Here, the Board does not find that any medical records received by VA, to include constructive receipt, prior to June 29, 2010, and after the final, August 2008 rating decision show that the symptomatology attributable to the Veteran's service-connected right knee disability worsened such that an earlier effective date is warranted. Specifically, these medical records, including the January 2010 VA treatment record reflecting the Veteran's report that his hypertension and knee condition were his most serious medical conditions, do not show a specific worsening of the Veteran's symptoms or the development of additional symptomatology sufficient to indicate entitlement to a compensable disability rating. Moreover, the treatment records do not reflect any indication of an attempt to file for an increased rating. As a result, the Board concludes that the medical records cannot be construed as raising an informal claim for an increased rating under 38 C.F.R. § 3.157(b) to warrant an earlier effective date of the 10 percent rating for the Veteran's right knee disability. Additionally, the Board finds that the evidence of record reflects no other such communication or medical record prior to June 29, 2010, that could give rise to an earlier effective date or constitute a formal or informal claim for increase. Thus, the Board finds that the only date that could serve as a basis for the award of a 10 percent rating is June 29, 2010, the date of the Veteran's increased rating claim for his right knee disability. There is simply no legal entitlement to an earlier effective date for the award of the 10 percent rating for the Veteran's right knee disability. As such, the claim must be denied. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including endocrinopathies, cardiovascular-renal disease, nephritis, cirrhosis of the liver, and calculi of the kidney are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for hepatitis C The Veteran contends that his hepatitis C is related to service, to include as due to in-service risk factors that resulted in his hepatitis C such as the use of air gun injectors for immunization and high-risk sexual activity. Specifically, at the March 2017 Board hearing, the Veteran testified that he had multiple sexual partners in service and that he was given air gun inoculations before and after other soldiers without the guns being cleaned. See March 2017 Board hearing transcript, pp. 33-36. Initially, the Board notes that although cirrhosis of the liver is listed as a chronic disease under 38 C.F.R. § 3.309(a), hepatitis C is not one of the enumerated chronic diseases listed under 38 C.F.R. § 3.309(a) nor does the evidence indicate that the Veteran's hepatitis C manifested in cirrhosis of the liver. Therefore, presumptive service connection, including the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b), do not apply here. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Instead, 38 C.F.R. § 3.303(a) and (d) apply in the present case for the hepatitis C issue on appeal. First, the Board finds that the Veteran has a current diagnosis of hepatitis C for VA compensation purposes. The Board acknowledges that the recent VA treatment records reflect that the Veteran's hepatitis C has been successfully treated/cured. See e.g., October 2018 VA treatment record (reflecting that the Veteran's hepatitis C is status post successful treatment); and July 2019 VA treatment record (reflecting that the Veteran was status post antiviral therapy for hepatitis C, was cleared and cured from hepatitis C virus and had no cirrhosis, and that his hepatitis C was undetectable since 2016). However, the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even if the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Here, as the evidence shows that the Veteran was treated for his hepatitis C during the appeal period, the Board finds that he has a current disability for VA compensation purposes. See January 2011 VA treatment record (reflecting a hepatitis panel showing a reactive hepatitis C screen); April 2016 VA treatment record (noting the Veteran was treated for hepatitis C in 2016 with 16 weeks of Sofosbuvir and Ribavirin); and May 2019 VA examination. Therefore, the remaining questions are whether the Veteran's hepatitis C is related to an event, injury, or incident during his active service, to include multiple in-service risk factors for hepatitis C, and whether there is a nexus or link between the Veteran's current disability and any in-service injury, event, or disease. Turning to the evidence of record, the Veteran's service treatment records (STRs) are silent as to any complains, treatment, or diagnoses related to hepatitis C. In this regard, the Veteran's February 1971 enlistment examination reflects no reports, symptoms, or risk factors for hepatitis C while the Veteran's separation examination in September 1973 is silent for hepatitis C or associated risk factors. Furthermore, an October 1973 STR, signed by the Veteran, reflects that there was no change in his medical condition since his last separation medical examination. Post-service, a November 2005 VA treatment record indicates that the Veteran had a diagnosis of hepatitis C while he was in prison. Specifically, the medical evidence of record reflects that the Veteran was diagnosed with hepatitis C in the 1990s. See June 2010 VA treatment record (reflecting the Veteran's report that he was diagnosed with hepatitis C in 1998). In June 2006, VA received a hepatitis risk factors questionnaire that the Veteran filled out. On the questionnaire, the Veteran reported "no" to all the listed risk factors including, engagement in high-risk sexual activity, intranasal cocaine use, and having tattoos or body piercings. Thereafter, a December 2006 VA treatment record reflects that the Veteran had consistently engaged in high-risk sexual behavior while an April 2011 VA treatment record reflects that the Veteran had a history of promiscuous sexual activity. In February 2011, VA received another hepatitis risk factors questionnaire filled out by the Veteran where he reported engaging in high-risk sexual activity while in service and having tattoos or body piercings while overseas as hepatitis risk factors. However, in May 2011, VA received another hepatitis risk factors questionnaire where the Veteran reported no to all the listed risk factors. In August 2013, the Veteran underwent a VA hepatitis, cirrhosis, and other liver conditions examination where the VA examiner noted that the Veteran was diagnosed with hepatitis C in 1990. The examiner, however, found that there were no findings of hepatitis C on physical examination and that the Veteran was asymptomatic on examination. In May 2019, the Veteran underwent another VA hepatitis, cirrhosis, and other liver conditions examination. At the examination, the Veteran reported a diagnosis of viral hepatitis C infection in the 1990s and he was noted as undergoing treatment for his hepatitis C with Sofosbuvir/Ribavirin for 16 weeks in 2016. The examiner confirmed that the Veteran had hepatitis C during the appeal period but found that the Veteran did not have a current hepatitis C disability or residuals for his hepatitis C. Following examination of the Veteran, the examiner opined that the Veteran's hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran's report of having several unprotected sexual encounters with women is not proof of the source of infection while there were no records presented to show elevated liver function testing in service and no physical findings of jaundice that would show an infection point. The examiner further asserted that the Veteran was not diagnosed until 20 years after service and noted that the Veteran's other potential sources of infection could include non-professional tattoos and intranasal cocaine. The examiner also explained that the use of air gun inoculation, while biologically plausible, has never been shown to have resulted in an infection with the hepatitis C virus. The October 2020 Board decision found that the May 2019 VA examiner did not provide adequate rationale regarding whether the Veteran's hepatitis C was related to in-service air gun inoculation. As such, the Board will provide no probative weight to the VA examiner's opinion concerning hepatitis C as related to in-service air gun inoculation but will provide some probative weight to the VA examiner's opinion concerning other potential post-service sources of infection. In April 2021, VA obtained an addendum opinion from a different VA physician who opined that the Veteran's hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA physician explained that there was no record or illness suggesting acute hepatitis in the Veteran's STRs nor record of treatment for sexually transmitted diseases in his STRs. In addition, the physician noted that the Veteran was diagnosed with hepatitis in 1998 and that a November 2005 primary care note indicated that the Veteran was diagnosed with hepatitis C while in prison. The VA physician also discussed another risk factor alleged by the Veteran by way of evidence from the VA website on hepatitis C. The physician explained that while VA has acknowledged the biological plausibility of hepatitis transmission by air gun injector, VA has also acknowledged that there is no scientific evidence, such as retrospective cohort studies of service members, to support that this occurred. As such, the examiner noted transmission from an air gun injunction in 1972/1973, while biologically plausible, is scientifically unsubstantiated as actually having occurred and that the Veteran's post-service multiple risk factors for hepatitis C exposure, based upon review of the medical evidence, (alcohol abuse, non-professional tattoos, drug use, incarceration), are more plausible as an etiology for transmission. Thereafter, in June 2021, the same VA physician who provided the April 2021 VA opinion, provided an addendum medical opinion that specifically addressed the Veteran's contention that he had several unprotected sexual encounters in service. The VA physician again averred that it is less likely than not that the Veteran's hepatitis C is related to service because there was no evidence to support that the Veteran contracted hepatitis C due to sexual encounters exclusively during service. The VA physician explained that notwithstanding the Veteran's report of unprotected sexual encounters during service, in the absence of other evidence such as laboratory or clinical evidence of an episode of acute hepatitis in service (albeit acute hepatitis is extremely uncommon with hepatitis C, which is usually asymptomatic), attributing the Veteran's hepatitis C to sexual encounters which occurred during service verus sexual encounters or other risk situations which occurred prior to service or to sexual encounters or other risk situations which occurred after leaving service is not possible without resorting to conjuncture. The physician further noted that it is not outside the realm of possibility that hepatitis C may have been acquired prior to service as it is typically asymptomatic, and no screening test existed at the time. The physician additionally reiterated in his June 2021 addendum chronic kidney disease opinion, that there was an absence of any corroborating evidence suggesting contraction of hepatitis C during service such as clinical or laboratory evidence of acute hepatitis. He further noted that there is no evidence that supports that the Veteran's hepatitis C was solely or primarily due to an event which occurred in service. In light of the above evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's hepatitis C was manifest during service or was shown to have developed as a result of an in-service injury, event, or disease. Specifically, the probative medical evidence of record does not indicate that his hepatitis C is related to his time in service. The Board finds that both the April 2021 and June 2021 VA opinions, in conjunction, constitute probative evidence of the medical nexus question as these opinions were based upon a detailed review of the Veteran's documented medical history and assertions. See Nieves-Rodriguez, 22 Vet. App. at 295. Specifically, the VA physician's opinions set forth, with detailed rationale, that Veteran's hepatitis C is less likely than not related to service, to include in-service air gun inoculations and in-service sexual encounters. In addition, the examiner explained the post-service risk factors that he believed most likely contributed to the Veteran's development of hepatitis C. The Board notes that there is no contrary opinion or evidence of record. Therefore, while the Board concedes the in-service risk factor of air gun inoculations and high sexual activity, the probative medical opinions of record do not show that the Veteran's hepatitis C is related to such event or incident or is otherwise related to his active service. Further, the medical evidence of record does not show any complaints or symptoms related to the Veteran's hepatitis C until several years after his active-duty service. The Board is cognizant that to establish a nexus, there is no requirement that a Veteran seek immediate post-service medical treatment for a hepatitis C condition. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). But here, a prolonged period without medical or lay complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In short, this long period without lay or medical evidence of hepatitis C and associated liver dysfunction also weighs against his service connection claim. Moreover, while a layperson is certainly competent to identify risk factors for hepatitis C, whether such disease is attributable to a specific risk factor identified is a medical question beyond the scope of common knowledge and requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As the Veteran is not shown to have appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. See id. Moreover, the Veteran's reports as to his associated risk factors are internally inconsistent as he reported different past risk factors in the hepatitis risk factor questionaries VA receives. As such, the Board assigns more probative weight to the April 2021 and June 2021 VA opinions of record, which are supported by rationale and consistent with the medical records, than the general, conclusory assertions of the Veteran. Accordingly, for the reasons above, the Board finds that service connection for hepatitis C is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for a kidney disability, to include as secondary to hepatitis C The Veteran contends that service connection is warranted for his current kidney disability. Specifically, he contends that his hepatitis C caused or aggravated his kidney disability. See March 2017 Board hearing transcript, p 73. First, it is not in dispute that the Veteran has a current kidney disability as VA treatment records throughout the appeal period show treatment for proteinuric chronic kidney disease. See e.g., August 2018 and January 2019 VA treatment records. The May 2019 VA examination also reflects that the Veteran has stage five proteinuric chronic kidney disease as well as diabetic nephropathy, chronic renal disease, neoplasm of the kidney, and proteinuria. Therefore, the remaining questions are whether the Veteran's kidney disability is related to an event, injury, or incident during his active service, and whether there is a nexus or link between the Veteran's current disability and any in-service injury, event, or disease. Turning to the evidence of record, the Veteran's service treatment records (STRs) are silent as to any complains, treatment, or diagnoses related to a kidney disability. In this regard, the Veteran's September 1973 separation examination reflects no reports, symptoms, diagnoses, or treatment for a kidney disability while an October 1973 STR, signed by the Veteran, reflects that there was no change in his medical condition since his last separation medical examination. The post-service VA treatment records contain several assessments concerning the nature and origin of the Veteran's chronic kidney disability. For example, a January 2012 VA treatment record reflects that the etiology of the Veteran's chronic kidney disease was unclear and that while the likely explanation was hypertension, his physicians were ruling out for hepatitis C associated chronic kidney disease. Thereafter, a February 2012 VA treatment record reflects an assessment that the Veteran's chronic kidney disease was likely secondary to hypertension as the Veteran's kidney biopsy was negative for hepatitis C associated GN/nephropathy. Another February 2012 VA treatment record reflects that the Veteran had significant proteinuria on urine analysis since 1999 and that at the time of his last visit, the etiology of his proteinuria was unclear. The treatment record further reflects that as the data was not consistent with hepatitis C related membranoproliferative glomerulonephritis (MPGN), it was recommended the Veteran undergo a renal biopsy, which yielded results consistent with diabetic nodular glomerulosclerosis. He was assessed with proteinuric stage two/three chronic kidney disease due potentially to diabetes mellitus verus uncontrolled hypertension with smoking, but the later seemed less likely as he stopped smoking many years ago. The treatment record further reflects that hepatitis C can exacerbate the course of diabetic nephropathy. Thereafter, an April 2016 VA treatment record reflects that the etiology of the Veteran's renal disease is unclear as he had a biopsy that read as diabetic renal disease, but the Veteran reported he does not have diabetes. On the other hand, a February 2017 VA treatment record indicates that the Veteran has proteinuric stage four chronic kidney disease attributed to diabetes and hypertension. At the March 2017 Board hearing, the Veteran testified that a VA physician told him that his kidney issues are related to his hepatitis C. See March 2017 Board hearing transcript, p. 75. Review of the subsequent VA treatment records reflects additional assessments regarding the nature of the Veteran's kidney disability. For instance, a December 2018 VA treatment record reflects that the Veteran's chronic kidney disease with nephrotic range proteinuria is attributed to diabetes, hypertension, and high-density lipoprotein with an additional history of hepatitis C. A January 2019 VA treatment record further indicates that the Veteran's chronic kidney disease is secondary to biopsy proven diabetic nephropathy, but that hepatitis C may be another added etiologic factor. An August 2019 VA treatment record also reflects that the Veteran was assessed with chronic kidney disease stage five with idiopathic nephrotic range proteinuria and that the etiologic of this per the Veteran's prior biopsy results was secondary to diabetes/prediabetes although the Veteran was in the prediabetic range. The note indicated that longstanding hypertension was possible but uncommon with this level or proteinuria and that the Veteran had prior ANA+ but most recently negative, but this could be due to his hepatitis C. In light of the conflicting evidence concerning the nature of the Veteran's kidney disability, VA obtained several medical opinions to address the nature and origin of the Veteran's claimed condition. In May 2019, the Veteran first underwent a VA kidney conditions examination. The VA examiner noted that the Veteran had a history of difficult to control hypertension, dyslipidemia, hepatitis C status post therapy, papillary renal cell cancer status post microwave ablation in 2016, and proteinuria noted in the 1990s with chronic kidney disease stage four. The examiner opined that it was less likely than not that the Veteran's kidney disability incurred in or was caused by an injury, illness, or event in service. The examiner explained that there is nothing to indicate the existence of a kidney condition in service from any source and nothing in the STRs to support such a finding. The examiner also opined that it is less likely than not that the Veteran's kidney disability was caused or aggravated by hepatitis C as the Veteran's kidney disability is the result of other factors not associated with a viral hepatitis infection. The examiner noted that after an extensive work-up at the nephrology service through VA, the Veteran's chronic kidney disease was found to be related to diabetes mellitus, type II, and difficult to control hypertension. The October 2020 Board decision found that the May 2019 VA opinion was inadequate because the VA examiner did not specifically address the Veteran's incidents of military service, to include having several unprotected sexual encounters with women and air gun inoculation, nor the fact that the Veteran did not actually have a diagnosis of diabetes mellitus, type II. As such, the Board will assign no probative weight to the May 2019 VA opinion. Thereafter, in April 2021, VA obtained an addendum medical opinion from a different VA physician who opined that it was less likely than not that the Veteran's kidney disability was incurred in or was caused by the claimed in-service injury, event, or illness. The VA physician explained that there is no evidence to support that the Veteran's kidney condition is related to service, including as due to air gun injections and noted that the Veteran's September 1973 separation examination was negative for albumin. The physician further explained that the pathology results from the Veteran's kidney biopsy supported diabetic nephropathy as the cause for his kidney disease and that the Veteran did not have diabetes in service. The physician further explained that there is no evidence to suggest that the Veteran's hepatitis C contributed substantially to his chronic kidney disease/kidney failure either as a causative factor or as an aggravating factor. In this regard, the VA physician noted that the Veteran's kidney biopsy did not reveal pathologic changes consistent with hepatitis C associated nephropathy and, instead, was consistent with diabetic nephropathy. Additionally, other features such as the presence of serum cryoglobulins which might have indicated an aggravation cause by hepatitis C were absent. The physician also cited to medical research noting that hepatitis C associated kidney disease includes mixed cryoglobulinemia, membranoproliferative glomerulonephritis, membranous nephropathy, and polyarteritis nodosa. In June 2021, the same VA physician who provided the April 2021 VA opinion, provided an addendum medical opinion that specifically addressed the Veteran's contention that he had several unprotected sexual encounters in service and to address the discrepancies in the medical records regarding kidney disease without a diagnosis of diabetes mellitus. The VA physician explained that it is less likely than not that the Veteran's chronic kidney disease is related to unprotected sexual encounters during service. The physician noted that sexually transmitted infections, which have the potential to cause chronic kidney disease in males include HCV, HIV, and tertiary/late-stage syphilis. The physician noted that the Veteran does not have either HIV or late-stage syphilis and explained that notwithstanding the fact that the Veteran's renal biopsy evidence does not support hepatitis C as a cause for his chronic kidney disease, attributing the Veteran's chronic kidney disease/hepatitis C to sexual encounters or other risk situations during service, in the absence of any corroborating evidence suggesting contraction of hepatitis, verus sexual encounters or other risk situations which occurred before or after service cannot be done without resorting to conjecture. He further noted that there is no evidence that supports that the Veteran's chronic kidney disease was solely or primarily due to an event which occurred in service. The June 2021 VA physician further explained that the findings on the Veteran's renal biopsy as well as the absence of cryoglobulin do not support hepatitis C as a cause of the Veteran's chronic kidney disease. He acknowledged that while the Veteran's renal biopsy included diabetes as a potential cause of his chronic kidney disease, in addition to acute tubular injury, the evidence does not show the Veteran has a diagnosis of diabetes. However, the physician explained that the Veteran has a history of pre-diabetes and that the complications of nephropathy, retinopathy, and neuropathy in type II diabetes may all occur in the setting of pre-diabetes such that the risk of these complications is a continuum related to blood sugar elevation and the duration of that elevation as well as genetic factors and other aggravating conditions; they not occur solely after a specific numerical threshold in blood sugar or A1c is passed. As a result, he explained that these diabetic complications may also be aggravated by the coexistence of other conditions such as hypertension or other kidney injury such that they are accelerated. Thus, a renal biopsy may show evidence of diabetic nephropathy even though the Veteran does not meet clinical criteria for a diagnosis of type II, diabetes. The physician also cited to medical literature to support these conclusions. In light of the above evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's kidney disability was manifest during service or was shown to have developed as a result of an in-service injury, event, or disease. First, the Board notes that the Veteran has not contended, and the evidence does not show, that his kidney disability had its onset during service or within one year of separation from service. Rather, the Veteran contends that his kidney disability is secondary to his hepatitis C. However, for the reasons fully discussed in the section above, the Board has found that service connection for hepatitis C is not warranted as the most probative evidence of record shows that hepatitis C did not have an onset during the Veteran's service and was not related to service. As such, the Board finds that under the law, the Veteran lacks legal grounds to establish entitlement to service connection for a kidney disability on a secondary basis as due to his hepatitis C. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Furthermore, the April 2021 and June 2021 VA opinions reflect that the Veteran's kidney disability was less likely than not proximately due to or caused by his hepatitis C. Although the Board acknowledges the VA treatment records noting a relationship between hepatitis C and a kidney disability, and finds the Veteran's March 2017 Board testimony credible that a VA physician informed him his kidney issues are related to his hepatitis C, as the Veteran is not service connected for hepatitis C, secondary service connection based on such is barred by law. Therefore, secondary service connection on this basis is not warranted. Next, regarding direct service connection for the Veteran's kidney disability, the probative medical evidence of record does not indicate that his kidney disability is related to his time in service or to any event or incident in service. The Board finds that both the April 2021 and June 2021 VA opinions, in conjunction, constitute probative evidence of the medical nexus question as these opinions were based upon a detailed review of the Veteran's documented medical history and assertions. See Nieves-Rodriguez, 22 Vet. App. at 295. Specifically, the VA physician's opinions set forth, with detailed rationale, that Veteran's kidney disability is less likely than not related to service, to include in-service air gun inoculations and in-service sexual encounters. In addition, the examiner explained the non-service-connected conditions that he believed most likely contributed to the Veteran's development of his kidney disability and explained that although the Veteran did not have a formal diagnosis of diabetes, his history of pre-diabetes likely contributed to such. The Board notes that there is no contrary opinion or evidence of record. Therefore, while the Board concedes the in-service risk factor of air gun inoculations and high sexual activity, the probative medical opinions of record do not show that the Veteran's kidney disability is related to such event or incident or is otherwise related to his active service. Further, the medical evidence of record does not show any complaints or symptoms related to the Veteran's kidney disability until several years after his active-duty service. The Board is cognizant that to establish a nexus, there is no requirement that a Veteran seek immediate post-service medical treatment for a kidney disability. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). But here, a prolonged period without medical or lay complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In short, this long period without lay or medical evidence of a kidney disability also weighs against his service connection claim. Moreover, while a layperson is certainly competent to identify risk factors and symptoms, whether such disease is attributable to a specific risk fact or identified symptom is a medical question beyond the scope of common knowledge and requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As the Veteran is not shown to have appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. See id. Moreover, the Board assigns more probative weight to the April 2021 and June 2021 VA opinions of record, which are supported by rationale and consistent with the medical records, than the general, conclusory assertions of the Veteran. Again, the Board finds this is persuasive evidence against the claim and when weighing the medical and lay evidence of record, including the contemporaneous medical records that do not reflect reports/treatment/diagnoses of a kidney disability until years after service, the preponderance of the evidence shows that the Veteran's current disability is not related to service or any in-service air gun inoculations or unprotected sexual encounters. Finally, as there is no evidence that the Veteran's chronic kidney disease had an onset in service or was manifest to a degree of 10 percent or more within a year from the Veteran's discharge from service, presumptive service connection, as a chronic disease, on that basis is not warranted in this case. See 38 C.F.R. §§ 3.307, 3.309(a). Accordingly, the claim is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a left shoulder disability After review of the record, the Board finds that a remand is again warranted to further develop the Veteran's claim. In this regard, VA treatment records reflect that the Veteran underwent a left shoulder surgery in March 2021 by a non-VA provider. Specifically, a May 2021 VA treatment record reflects that the Veteran underwent left shoulder surgery on March 25, 2021, at Keck USC with Dr. Reza Omid and that he potentially had a pre-operative clearance done at USC as well. A March 2021 VA treatment record further reflects that the Veteran was followed by a community provider, Dr. Reza Omid, for his left shoulder pain. Treatment records associated with this left shoulder surgery, to include an operative report, are not associated with the claims file nor does it appear that the AOJ attempted to obtain these treatment records. As these outstanding private treatment records may include a history of the Veteran's left shoulder disability and may be relevant to his claim, a remand is warranted to obtain these records and to fulfill VA's duty to assist. The Board also finds that on remand VA should obtain an addendum opinion concerning the nature and origin of the Veteran's left shoulder disability. In this regard, most recently, an April 2021 VA physician provided a negative nexus opinion noting that the Veteran reported left shoulder pain in 2011 and that while the Veteran's statement of injury in service is taken into account, it does not offset the lack of any medical evidence in service or immediately after service to support a nexus between his current left shoulder condition and military service. Based on this opinion, it is unclear whether the VA examiner considered the treatment records where the Veteran complained of left shoulder pain prior to his claim in 2011. See October 2005 VA treatment record (reflecting the Veteran's report that he has experienced chronic left shoulder pain for the past 10 years); March 2006 VA treatment record (reflecting that the Veteran has had left shoulder pain for the past 30 years with no specific inciting event and that x-ray revealed secondary signs of left rotator cuff tear and mild osteoarthritis). Several treatment records after the Veteran's claim also reflect that the Veteran has experienced left shoulder pain for over twenty years. See e.g., July 2011 VA treatment record (reflecting that the Veteran's pain in his left shoulder is chronic for the past 30 years); December 2020 orthopedic surgery consultation (noting that the Veteran has left shoulder pain for more than 20 years and that he reported his initial traumatic injury was caused by a weight dropping onto his left shoulder back in the 1970s). Moreover, the October 2020 Board decision remanded the Veteran's claim for an addendum opinion that considers the Veteran's statements that he had to repeatedly life heavy pots and pans in service regardless of the specific weight of these items. As such, the Board finds that VA should obtain an addendum opinion specifically addressing this report of in-service wear and tear prior to adjudication the Veteran's claim. 2. Entitlement to a rating in excess of 10 percent for the service-connected right knee disability Upon review of the record, the Board finds that a remand is warranted for an addendum medical opinion to accurately assess the severity of the Veteran's service-connected disability. In this regard, it is unclear whether the Veteran's disability manifests in symptoms resulting in hyperextension and, as such, whether a separate disability rating for genu recurvatum is warranted. Specifically, the Board notes that the Veteran most recently underwent a VA knee examination in April 2021, in which the VA examiner indicated that the Veteran's active range of motion included extension to negative five degrees and that pain for active extension began at negative 20 degrees. However, on the examination report, the examiner did not check the box indicating that the Veteran had acquired and/or traumatic genu recurvatum with objectively demonstrated weakness and insecurity in weight-bearing. Additionally, a prior January 2011 VA knee examination reflects that the Veteran experienced pain at negative 20 degrees of extension during range of motion testing. However, the examiner also specifically noted that the Veteran had no genu recurvatum. As the Veteran's negative extension measurements appear consistent with hyperextension, it is unclear why the VA examiners did not assess the Veteran with genu recurvatum. As such, the Board finds that remand is warranted for an addendum medical opinion to specifically discuss the Veteran's recorded hyperextension and whether he has genu recurvatum of his right knee. 3. Entitlement to a TDIU due to service-connected disabilities If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating, is whether TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, in a May 2013 Statement in Support of Claim, the Veteran stated that his arthritis had moved to different joints of his body and had caused difficulty with his employment and physical health. In his April 2017 VA pension application, the Veteran also indicated that his arthritis prevents him from working. The Board finds that these records suggest an allegation of unemployability due to service-connected disabilities. The Veteran has not been provided with a proper duty-to-assist notice letter for a TDIU claim, nor has any development been accomplished with respect to this claim. Accordingly, the Veteran must be provided with this requisite notice, to include the opportunity to clarify his employment history, and the claim must be adjudicated in the first instance upon remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated July 2021. 2. Provide the Veteran with notice of the requirements for entitlement to a TDIU including VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) and invite him to submit additional evidence in support of the claim. 3. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited above. 4. Provide the Veteran with another opportunity to identify any relevant outstanding private treatment records pertaining to his claims. Specifically, ask the Veteran to complete the required authorization forms for any private treatment he has received for his claimed conditions, to include the identified treatment and left shoulder surgery treatment records from Dr. Reza Omid at Keck USC. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained and associated with the claims file. 5. Then obtain an addendum opinion from an appropriate medical professional to address the Veteran's service connection claim for a left shoulder disability. The claims file, to include a copy of this Remand, must be made available to and be thoroughly reviewed by the VA examiner. The examiner is asked to address the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's left shoulder disability had an onset in service or is otherwise related to service, to include from a reported lifting injury with barbell weights in service and/or wear and tear from repeatedly lifting heavy pots and pans related to his military occupational specialty as a cook? In providing the above opinion, the VA examiner is asked to address the Veteran's contentions of a reported lifting injury with barbell weights in service and/or wear and tear from repeatedly lifting heavy pots and pans related to his military occupational specialty as a cook. The VA examiner should also consider the post-service treatment records reflecting left shoulder pain for over 20 years. A clearly stated rationale for any opinion offered should be provided. A discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. 6. Obtain an addendum opinion from an appropriate medical professional to address the Veteran's service-connected right knee disability. The claims file, to include a copy of this Remand, must be made available to and be thoroughly reviewed by the VA examiner. The need for another examination of the Veteran is left to the discretion of the examiner. The examiner is asked to address the following: Is it at least as likely as not (50 percent probability or greater) the Veteran's service-connected right knee disability manifests in genu recurvatum under the applicable diagnostic criteria? Why or why not? In providing the above opinion, the VA examiner must address the January 2011 and April 2021 knee VA examinations recording negative extension measurements in the right knee and discuss whether this evidence shows the Veteran has hyperextension/genu recurvatum. A clearly stated rationale for any opinion offered should be provided. A discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. 7. After the above development has been completed, adjudicate the TDIU issue on appeal in light of all the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.