Citation Nr: 21070497 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-52 909 DATE: November 24, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to an initial compensable rating for left zygomatic arch fracture, status post (s/p) closed reduction, is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his left knee disability is shown to be etiologically related to service. 2. Resolving all doubt in the Veteran's favor, his right knee disability is shown to be etiologically related to service. 3. The preponderance of the evidence does not support a finding that the Veteran's claimed hepatitis C is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disorder have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(. 2. The criteria for entitlement to service connection for a right knee disorder have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1980 to April 1983. He received a Parachute Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Board notes the Veteran testified before a different Veterans Law Judge (VLJ) at a December 2019 hearing before the Board of Veterans' Appeals (Board). In September 2021, VA sent the Veteran a letter informing him that the VLJ who had conducted his hearing was no longer available. The letter informed the Veteran of his right to request another Board hearing. The Veteran did not respond within 30 days of the date of the letter. Therefore, the Board will assume he does not want another hearing and will proceed with adjudication. These matters were previously before the Board in April 2020, at which time they were remanded for further development to include obtaining VA treatment records from August 2015 to the present. In addition, the Board requested the Veteran be afforded with VA examinations to determine the current severity of his service-connected left zygomatic arch fracture and the current nature and etiology of his claimed hepatitis C and left and right knee disabilities. VA treatment records were added to the claims file in May 2020. The VA requested and obtained examinations in October and November 2020. Except with regard to the increased rating claim, VA complied with the remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). As will be highlighted below, a thorough review of the Veteran's claim file shows some service treatment records (STRs) are unavailable. As such, the Board notes that VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. However, the Board observes that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred or aggravated in the line of duty during active military service. This means the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. All favorable lay evidence of record must be considered. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he or she has actually observed and is within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability The Board acknowledges that the Veteran has a diagnosis of bilateral knee degenerative arthritis. See October 2020 VA knee and lower leg conditions examination. Thus, the only question for the Board is whether his bilateral knee disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's STRs include an April 1981 treatment record noting the Veteran attended Jump School. A June 1982 treatment record noted a complaint of right leg pain; the Veteran was diagnosed with a right leg muscle pull. After a thorough review of the claims file, the Board is unable to identify an entrance or separation examination. The Board observes that the RO requested the Veteran's complete STRs and entire personnel file in November 2010. A December 2010 response from the National Personnel Records Center (NPRC) indicated that all available records were already provided to VA. Thus, it appears the Veteran's entrance and separation examination reports, if they exist, are unavailable. Post-service treatment records include a March 2010 primary care record that noted the Veteran complained about knee pain with occasional swelling after prolonged walking. The provider noted knee pain was likely traumatic arthritis based on history of airborne and current occupation. March 2010 knee imaging noted an impression of minimal early degenerative changes of the knees. A March 2011 primary care record noted a complaint of chronic knee pain. A May 2015 primary care record noted knee pain that is occasionally worse on the left side. The Veteran was afforded an October 2020 VA knee and lower leg conditions examination. The examiner confirmed a diagnosis of bilateral knee degenerative arthritis from March 2010. The examiner noted a partial timeline of medical records documenting knee issues. The examiner also noted diagnostic testing to include imaging of both knees. In the attached medical opinions (one addressing each knee), the examiner opined that the Veteran's right and left knee condition is less than likely as not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for the opinion, the examiner noted that after reviewing medical records dated 04/28/1981, 05/06/1981, 06/29/1982, 03/31/2010 and performing a physical exam, it is less likely as not that the right knee disabilities is secondary to, incurred in or caused by his parachuting jumps during service or to a June 1982 muscle pull of the right leg. The examiner also noted treatment records failed to show any continued left or right knee condition until March 2010. The examiner concluded that there is no direct pathophysiologic relationship between the left or right knee disabilities and the parachute jumps during service or to the June 1982 right leg muscle pull. The Veteran testified in his December 2019 Board hearing that he made more than 50 jumps wearing more than 100 pounds of gear and was sometimes dragged across the drop zone after landing. The Veteran also testified that he experienced pain during and immediately after service and continues to experience knee pain. The Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge including the presence of pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). He does not have the training or credentials to determine the etiology and the current nature and severity of those symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, in this case, the STRs noting Jump School attendance and post-service treatment records including the March 2010 bilateral knee imaging noted above tend to support the Veteran's testimony that his bilateral knee condition is related to his active service. Based on a thorough review of the claims file, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's bilateral degenerative arthritis knee condition is related to service. The Board is mindful of the October 2020 VA medical opinion's negative etiology finding. However, this opinion only serves to place the medical evidence in a state of relative equipoise with the etiology opinion expressed in the March 2010 post service treatment record that the Veteran's knee conditions are likely related to service. The Board notes that the benefit of the doubt mandate is triggered when the evidence reaches a stage of equipoise. In this matter, the Board is of the opinion that this point has been attained. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Accordingly, service connection for a bilateral degenerative arthritis knee condition is warranted. The claims are accordingly granted. 3. Entitlement to service connection for hepatitis C The Veteran seeks service connection for hepatitis C and has raised two separate theories of service connection. In an April 2011 correspondence, a prior representative asserted that the Veteran was exposed by inoculations given through air-gun injection at induction to active service. The Veteran asserted an alternative theory of exposure as blood transfusion during surgery to repair his left zygomatic arch fracture. See December 2019 Board hearing testimony. After reviewing the evidence of record, the Board finds that service connection is not warranted. The Board acknowledges that the Veteran has a current diagnosis of hepatitis C. See October 2020 VA hepatitis, cirrhosis, and other liver conditions examination. Therefore, the only question for the Board is whether there is a nexus between the current disability and service. The Veteran's STRs are silent as to a diagnosis, complaints of, or treatment for symptoms related to hepatitis. An April 1981 Operation Report noted the Veteran underwent a closed reduction of the fracture of the left zygomatic buttress. The report noted there was probably on 3cc's of blood loss during the procedure. The STRs establish that the Veteran did receive inoculations during service starting in May 1980. As noted above, STRs do not include entrance or separation examinations. Post-service medical records include an October 2008 record indicating that no hepatitis C risk factors were identified. A March 2011 VA treatment letter that noted a positive hepatitis C result. April 2012 laboratory results showed a positive reaction to hepatitis C test. A November 2012 VA hepatology record noted a provisional hepatitis C diagnosis. A November 2020 addendum noted a negative right upper quadrant liver ultrasound. A December 2012 speech pathology record noted that the Veteran had a diagnosis of hepatitis C. A July 2014 abdominal ultrasound noted the Veteran had cholelithiasis but was otherwise unremarkable. A May 2014 primary care record noted the Veteran was discharged from the hepatitis C clinic back to primary care. The same record noted that importance of quitting alcohol and drugs was discussed. The Board notes there are numerous additional treatment records that note hepatitis C in the medical history. The Veteran was afforded a VA hepatitis, cirrhosis, and other liver conditions examination in October 2020 that included an in-person examination and review of the claims file. The examiner confirmed a diagnosis of hepatitis C. The examiner noted laboratory study results from October 2020. Although the examiner noted that the Veteran has been diagnosed with hepatitis C, the examiner indicated that there are no known risk factors. The examiner opined that the Veteran's hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that after reviewing available medical records and performing a physical examination, it was less likely as not that the Veteran's current hepatitis C is related to a blood transfusion during the April 1981 operation and/or any claimed air gun immunizations during service. The examiner noted the Veteran was diagnosed with hepatitis C in 2017. The examiner determined that there was no direct pathophysiologic relationship between any blood transfusion during the April 1981 operation and/or any claimed air gun immunizations that would cause the hepatitis C condition, nor are there any records showing such a relationship exists. The Board notes there are no other medical etiology opinions of record. The Veteran testified during his Board hearing that he had not used drugs or needles and did not have any tattoos. He strongly believes that a surgical blood transfusion caused his current condition. The question of whether the Veteran's hepatitis C is related to his service is medically complex, and beyond the scope of lay observation; it requires medical training and credentials. Jandreau, supra. As the Veteran is a layperson, and does not cite to supporting clinical data, a supporting medical opinion, or supporting medical literature, his opinion regarding a nexus between his hepatitis C and service is not competent evidence and lacks probative value. The Board notes that while the October 2020 examiner incorrectly indicated that the Veteran was diagnosed with hepatitis C from 2017, it is clear from a thorough review that his post-service treatment records do not reveal a positive diagnosis for hepatitis C at any time prior to March 2011, nearly three decades after the surgical procedure the Veteran indicated caused his condition. The Board does not consider this six-year discrepancy to be meaningful and warranting a corrective opinion, given that the Veteran was separated from service nearly three decades before the first-post service diagnosis was rendered. While not dispositive, the lapse of time between separation from service and the earliest documentation of a claimed disability is a factor that weighs against the Veteran's claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the absence of competent evidence supporting the Veteran's claim for service connection for hepatitis C, the Board finds that the preponderance of the evidence is against the Veteran's claim, and service connection is not warranted. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a hepatitis C must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran testified during his December 2019 Board hearing that his left zygomatic arch fracture is still occasionally painful. The record reflects that the Veteran was afforded a November 2020 VA bone conditions examination, but the report is extremely cursory and seemingly incomplete. The examiner noted that the Veteran "does not experience bone pain. The pain severity level is at [sic]. Pain is exacerbated by [sic] The claimant states that he does not experience any flare-ups. There are no current symptoms." The examiner went on to note that the examination was within normal limits. The incomplete sentences regarding the Veteran's reported history, however, call into question whether pain was reported by the Veteran. It would appear that no consideration was given to the December 2019 hearing testimony. Given the cursory nature of this examination report and the need for further clarification of pain, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination to identify and determine the current level of severity of all impairments resulting from his service-connected residual of fracture of the left zygomatic arch. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. A complete rationale must be provided for all opinions offered. Consideration must be given to the Veteran's complaints of pain at his December 2019 hearing. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.