Citation Nr: 21071518 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-13 900 DATE: November 30, 2021 ORDER Entitlement to service connection for Hepatitis C is granted. Entitlement to service connection for hypertension is denied Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension is denied. Entitlement to service connection for a right ankle disability is denied. REMANDED Entitlement to service connection for status post type I aortic dissection with medical sternotomy with repair, to include as secondary to hypertension and hepatitis C is remanded. Entitlement to service connection for a chest pain disability is remanded. Entitlement to service connection for a right foot disability is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his current disability of hepatitis C was due to service. 2. The preponderance of the evidence is against finding that hypertension began during active service, manifested to a compensable degree within the applicable presumptive period or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that erectile dysfunction began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the current right ankle strain began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 4. The criteria for service connection for right ankle strain have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to July 1976. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during an August 2019 hearing. The transcript of the hearing is of record. A September 2019 Board decision dismissed the issue of entitlement to service connection for sexually transmitted disease and remanded the remaining issues on appeal for further development. A March 2021 Board decision then reopened the claim for service connection for a right foot disability and remanded the remaining issues on appeal for further development. A June 2021 rating decision granted service connection for photophobia and tension headaches. As this constituted a complete grant of the benefit sought on appeal for that issue, it is not before the Board. Service Connection 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 claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, "the preponderance of the evidence must be against the claim." Id. at 54. 1. Entitlement to service connection for Hepatitis C The Veteran contends that his hepatitis C was due to using contaminated razors in service. The Board finds that the Veteran has a current disability of hepatitis C and that service connection is warranted. The first question is whether the Veteran has a current disability of hepatitis C. The May 2021 VA examination found that while the Veteran was diagnosed with Hepatitis C in 1999, he was treated with interferon and cleared the virus in 2008. The examiner noted the Veteran's reports of residuals of liver scarring and cirrhosis but did not diagnose either scarring or cirrhosis. As a basis for this finding, the examiner explained that CT scan and echogram showed no evidence of liver abnormalities. Consistent with the examiner's findings, March 2000 VA treatment records noted that the Veteran was told he had hepatitis C at a recent blood donation. March 2008 records show treatment for hepatitis C and noted prior treatment in 2002-2003. April 2008 records show that hepatitis C treatment had been completed. The Veteran filed his service connection claim for hepatitis C in February 2008, before completing treatment in April 2008. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and a claimant may be granted service connection even though the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the Veteran had an active diagnosis of hepatitis C at the time of filing, he has a current disability, and the Board will consider whether it was due to service. The May 2021 VA examiner found that hepatitis C was not likely due to using contaminated razors in service as contended by the Veteran. The examiner stated that the CDC had not documented any cases of spread from razors or toothbrushes, and the Veteran had a history of drug use as well as risky sexual behavior, including contracting STDs, that would place him at risk for hepatitis C. As a basis for this finding, the examiner cited service treatment records noting multiple sexual partners within a 5 day time span and showing treatment for gonorrhea. The examiner concluded that the Veteran's history of illegal drug use and risky sexual practices presented a "much higher risk" than contaminated razors. December 1975 service treatment records show both a diagnosis of gonorrhea and a notation regarding multiple sexual partners, consistent with the VA opinion. Resolving all doubt in favor of the Veteran, the Board finds that the competent evidence indicates that the Veteran's hepatitis C is due to service. While the May 2021 examiner found that hepatitis C was not likely due to exposure to contaminated razors, the examiner nonetheless found that risky sexual practices posed a high risk of transmission and specifically identified activities in service as the source of that risk. The Board therefore finds that hepatitis C was as likely as not due to the high risk activity documented in the Veteran's service treatment records and identified by the May 2021 examiner as a likely source of hepatitis C transmission. Service connection is therefore warranted. 2. Entitlement to service connection for hypertension The Veteran seeks service connection for hypertension. After a review of the evidence of record, the Board concludes that, while the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against finding that it began during active service, or within a year of separation from service, or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303, 3.307, 3.309. Service connection for certain chronic diseases, including hypertension, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hypertension is manifest to a compensable degree when there is diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more, or when there is a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. The Veteran's service treatment records are silent for diagnosis or treatment for hypertension and also do not contain a pattern of elevated blood pressure. The March 1973 entrance examination shows blood pressure of 120/70. December 1974 records show a blood pressure reading of 120/66. October 1973 records show that he complained of chest pain when walking and running. November 1992 VA treatment records show a blood pressure of 138/76. March 1997 records show blood pressure of 164/104. December 1997 VA treatment records document a "new" diagnosis of hypertension based on readings of 157/106, 149/102 and 145/93. Additional records noted blood pressure of 183/119 and the Veteran reported being told his blood pressure was too high when at the dentist. The provider diagnosed hypertension. March 1998 records show a blood pressure of 138/85, and the provider noted that hypertension was improved with HCTZ. December 1998 VA treatment records show a blood pressure follow up, a reading of 164/103, and ongoing treatment with HCTZ. The Veteran reported hypertension for a "couple years." June 2003 VA treatment records noted a March 2000 hypertension diagnosis. May 2009 private treatment records noted longstanding essential hypertension and a history of cocaine abuse. A May 2021 VA examination noted the Veteran's reports of episodes of lightheadedness, dizziness, and headaches in service but that he was not worked up for hypertension. The examiner opined that hypertension was not due to service. The examiner acknowledged the October 1973 complaints of chest pains but found that they did not show the onset of hypertension but were instead exercise-induced bronchiospasm, specifically noting that blood pressure was evaluated 2 months later and was normal. Citing the evidence of the VA treatment records, the examiner then opined that hypertension started after service, probably in the later 1990s to the early 2000s. The Board finds that the competent evidence of record does not support the conclusion that the Veteran's hypertension had its onset in service or manifested to a compensable degree within a year of separation. There is no indication of either elevated blood pressure readings or a diagnosis of hypertension in service. The Veteran's active service ended in July 1976. To manifest to a compensable degree within one year, the evidence would need to show diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or continuous medication. A review of the evidence shows the record is silent for evidence of either elevated blood pressure readings or a prescription for blood pressure medication during the presumptive period. The first medical evidence of record of hypertension or indeed of an elevated blood pressure reading are the March 1997 reading of 164/104 and the December 1997 diagnosis of hypertension, over 20 years after service. Significantly, the provider indicated that the diagnosis was "new," indicating that there was no history of hypertension at that point. The only prior reading in the VA treatment records, a reading of 138/76 in 1992 that was well below a systolic level of 160 or a diastolic level of 100, is consistent with the provider's characterization. March 1998 treatment records then show a diagnosis of hypertension and prescribed HCTZ, but again, this was over 20 years after separation from service and not within the presumptive period. In addition, the May 2021 examiner found that there was no nexus to service, specifically considering the Veteran's reports of lightheadedness, dizziness, and headaches as well as the chest pain shown in service. The examiner found that those symptoms did not show the onset of hypertension, citing normal blood pressure after the episode of chest pain, and opined that hypertension likely began in the late 1990s/early 2000s. This opinion is supported by the VA treatment records, which as noted above show a "new" hypertension diagnosis in 1997. While the Veteran believes he is entitled to service connection for hypertension, he does not possess the medical expertise required to provide an opinion as to the etiology of the currently diagnosed hypertension. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board therefore assigns more weight to the opinion of the May 2021 examiner, who found that hypertension was not due to service and did not have its onset until many years after service. The Board therefore finds that the preponderance of the evidence indicates that the Veteran's hypertension was not caused by or incurred in service and did not manifest to a compensable degree within the presumptive period. Service connection is therefore not warranted. 38 C.F.R. § 3.303(a), (d), 3.307, 3.309. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension The Veteran contends that his erectile dysfunction (ED) is due to service and that it is secondary to hypertension. For the reasons that follow, the Board finds that service connection is not warranted. Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Here, the Veteran contends that ED is secondary to hypertension. However, service connection for hypertension has not been granted, and service connection on a secondary basis is therefore not applicable. The Board will therefore consider whether direct service connection is warranted. December 1975 service treatment records show that the Veteran was diagnosed with gonorrhea in service and that he complained of urethral discharge and burning on urination. The Board's review indicates that service treatment records are silent for symptoms, diagnosis, or treatment of erectile dysfunction. December 2003 VA treatment records show that the Veteran reported problems with erections for a year since being on Atenolol, a high blood pressure medication. Prior VA treatment records show that his provider started prescribing Atenolol in November 2001. December 2008 VA treatment records show a diagnosis of male erectile disorder. An August 2015 urology consult noted prostate cancer and that the Veteran had erectile dysfunction and no erections. November 2016 VA treatment records noted a history of prostate cancer and erectile dysfunction for the last 4 to 5 years, worse with prostatectomy. A March 2015 VA opinion found that ED was not likely due to service. As a rationale, the provider stated that service records were negative for complaints or treatment for ED. The examiner also noted the in-service treatment for gonorrhea but found that it resolved without residuals. Upon review of the above, the Board finds that the competent evidence is against finding that the Veteran's ED began in service or was otherwise due to service. First, the record does not show, and the Veteran does not contend, that his ED began in service. Service treatment records are silent for reports of erectile dysfunction. VA treatment records show complaints of ED associated with Atenolol use beginning in 2003, and the Veteran reported that they had begun a year prior. Records show that Atenolol was initially prescribed in November 2001. Thus, at the earliest, the record shows an onset of ED symptoms in 2001, 25 years after the Veteran's separation from service in 1976. The record also does not show that the Veteran's ED is likely due to service. While service treatment records show complaints of an STD, the May 2015 opinion found that the current ED was not likely related to that in-service complaint as it resolved without residuals. There is simply no competent evidence of record that establishes either an earlier onset of ED or a relationship between the Veteran's ED and his active service. While the Veteran contends that his ED is related to service, as a layperson, he does not possess the medical expertise required to provide a nexus opinion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board therefore gives more weight to the opinion of the May 2015 VA examiner. The Board therefore finds that the preponderance of the evidence indicates that the Veteran's ED was not caused by or incurred in service. Service connection is therefore not warranted. 38 C.F.R. § 3.303. 4. Entitlement to service connection for a right ankle disability The Veteran contends that his right ankle disability is due to an in-service ankle injury. For the reasons that follow, the Board finds that service connection is not warranted. July 1974 service treatment records document a right ankle injury and a diagnosis of right ankle strain. The provider prescribed treatment with ace bandage and the Veteran was placed on profile for 5 days. The Board's review indicates that subsequent service treatment records were silent for ankle complaints, treatment, or diagnoses. The Board's review indicates that VA treatment records from November 1992 through May 2008 are silent for right ankle complaints or diagnoses. December 2006 VA treatment records show that the Veteran was referred to kinesiotherapy for general endurance training. The provider found right ankle range of motion to be within normal limits and noted that the Veteran performed ankle pumps with resistance, including heel slides, as part of the training. May 2008 VA treatment records show that the Veteran was evaluated for bilateral ankle pain since an assault 2 weeks earlier. The provider diagnosed mild bilateral ankle sprain. Records also contain the May 2008 x-rays report, which noted an assault 2 weeks earlier involving twisting motion of the ankle and current pain on ambulation. The provider recorded an impression of no acute abnormality. A May 2008 addendum noted that the Veteran had been beaten up in jail on three separate dates in May and was sore all over with minimal swelling on both ankles. February 2009 VA treatment records show that the Veteran complained of right ankle pain since being attacked in jail several months prior. He reported that he rolled his foot easily and it hurt. The provider ordered a brace. November 2009 records noted right ankle pain that was intermittent and sharp. The provider found that there was no decreased range of motion on examination, noted the benign 2008 x-ray, and placed a consult for physical therapy. January 2010 VA treatment records show that the Veteran reported injuring his right ankle "several years ago" and pain had worsened after re-injuring it a few months ago. X-rays were noted to be unremarkable. July 2010 records noted chronic right ankle pain and instability when he rolled it, as well as a recent car accident. October 2011 VA treatment records noted chronic ankle pain and instability since a strain a year ago. January 2013 records show complaints of chronic right ankle pain and instability following the same strain. The Veteran was advised to wear a brace. A February 2015 bone scan showed small focus of increased activity overlaying the right ankle that the provider indicated likely represented degenerative or posttraumatic change. May 2017 VA treatment records noted new onset lower extremity swelling in the ankle and foot. A January 2015 VA opinion found that the current right ankle sprain was likely a continuation of ankle pain treated in service in July 1974. The Board notes that the examiner did not provide any rationale for this finding, and it is therefore inadequate for review. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A VA addendum opinion was obtained in May 2015, and the provider was asked to reconcile the January 2015 opinion with conflicting medical evidence of record. The provider opined that the Veteran's current right ankle pain was proximately due to a physical altercation in May of 2008 "after careful review of c-file", noting that symptoms were ongoing. The examiner did not provide a basis for this finding aside from noting that records were reviewed, which does not give the Board any indication of the examiner's reasoning. It is therefore also inadequate. Id. A May 2021 VA examination diagnosed right ankle strain and noted the 1974 right ankle injury and the Veteran's reports of residual pain and weakness since that time. No arthritis was shown on a May 2021 x-ray. The examiner found, however, that the current right ankle strain was not due to service, including the 1974 injury. As a rationale, the provider acknowledged the 1974 diagnosis of ankle strain but noted that there were no further ankle complaints regarding the in-service injury. The examiner noted that the Veteran next sought ankle care after an altercation in 2008, and that other complaints regarding the right ankle pertained to specific injuries such as twisting and injuring the ankle after service. Based on this record, the examiner concluded that the current right ankle strain was likely due to the injuries after separation. The Board finds that the May 2021 VA examinations is adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the report is based on the Veteran's statements, in-person examination and the examiner's observations, the Board finds it entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the August 2019 Board hearing, the Veteran reported that he did not have a current right ankle diagnosis and was not getting treatment but treated it himself with ibuprofen and a brace. He reported that he turned his ankle playing basketball in service in 1975 and had current pain and swelling that restricted his walking. He said he did not get further treatment after the injury because he was trying to work through it, but it got worse as he got older. The Board notes that the Veteran is competent to report treatment he receives and lay-observable symptoms such as pain and accords his statements significant probative weight. Upon review of the above, the Board finds that the competent evidence is against finding that the Veteran's current right ankle strain began in service or was otherwise due to service. The Board acknowledges that the record shows both an ankle strain in service and a current diagnosis of ankle strain, however the preponderance of the evidence indicates that the current strain is likely due to intercurrent causes rather than the injury in service. The May 2021 VA examiner, while acknowledging both the in-service injury and the Veteran's reports of ongoing pain, found that the current strain was more likely due to the 2008 injury documented in the VA treatment records and subsequent re-injuries. This conclusion is consistent with the evidence in the VA treatment records, which show ongoing care beginning in 1992 but are silent for any ankle complaints, diagnoses, or treatment from until the May 2008 ankle injury that was specifically attributed to an assault at that time. Notably, kinesiotherapy records from 2006 show that the Veteran had full range of motion in the right ankle and performed ankle exercises but are silent for any chronic ankle issues or need for treatment, noting only deconditioning since heart surgery. Records do not show complaints of chronic ankle pain until after the May 2008 attack and diagnosis of mild ankle sprain, but regular reports of chronic ankle pain appeared after that point and repeatedly noted pain since the assault. While there is no dispute that the Veteran sustained a right ankle injury in service, the preponderance of the evidence therefore indicates that the current right ankle disability is due to the 2008 injury and is not attributable to the remote ankle injury in 1974. While the Veteran contends that his right ankle disability is related to the injury in service, as a layperson, he does not possess the medical expertise required to provide a nexus opinion, and the Board therefore assigns more weight to the opinion of the May 2021 examiner. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board acknowledges that the Veteran reported pain after his 1974 injury and that he self-treated it until it worsened with age. However, those reports are inconsistent with the evidence in the VA treatment records, which repeatedly show reports of ankle pain beginning not in 1974 but in 2008 after that assault and ankle injury. While one VA treatment record from January 2010 noted a right ankle injury "several years ago" and re-injury several months ago, it is unclear from the record which ankle injury was being referenced. Therefore, taken alone and when balanced against numerous records all noting pain beginning with the 2008 sprain, the weight of the evidence is against finding that the Veteran had chronic ankle pain since the injury in 1974. The Board therefore finds that the preponderance of the evidence indicates that the Veteran's right ankle sprain was not caused by or incurred in service. Service connection is therefore not warranted. 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for status post type I aortic dissection with medical sternotomy with repair, to include as secondary to hypertension and hepatitis C 2. Entitlement to service connection for a chest pain disability A May 2021 VA opinion found that the Veteran's status post type I aortic dissection was not likely related to his episode of chest pain in service, however it did not address whether that disability was caused or aggravated by the Veteran's now service-connected hepatitis C. Remand for a new opinion is therefore required. A May 2021 VA opinion found that the Veteran's current chest pain diagnosis of stable angina was a direct result of his underlying heart surgery. As the evidence indicates that the Veteran's chest pain may be secondary to his aortic dissection, the issue of service connection for chest pain must also be remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Entitlement to service connection for a right foot disability is remanded. A May 2021 VA examination diagnosed right foot plantar fasciitis and arthritis but found that they were not likely due to service. As a rationale, the examiner stated that there were no foot complaints in service and the first evidence of foot complaints was in 2004. Therefore, the current right foot diagnoses were not likely due to improper footwear or boots. The Board notes, however, that the Veteran has reported blisters and pain in service and having callouses removed. These reports were not specifically addressed in the opinion, which simply stated that there were no foot complaints in service without explaining the basis for disregarding the lay evidence regarding such complaints. As a result, the opinion appears to disregard the Veteran's lay statements regarding the foot complaints and treatment in service merely because they are unaccompanied by contemporaneous medical evidence. The opinion is therefore inadequate and remand for a new opinion is required. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). The matters are REMANDED for the following action: 1. Obtain a VA opinion from an appropriate provider to address whether the Veteran's status post type I aortic dissection was as least as likely as not (50 percent or greater probability) caused or aggravated by his service-connected hepatitis C. The examiner should review the file and provide a complete rationale for all opinions expressed. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 2. Obtain a VA opinion from an appropriate provider regarding the etiology of the Veteran's right foot plantar fasciitis and arthritis. The opinion should address whether the Veteran's right foot disabilities were as least as likely as not (50 percent or greater probability) due to service, including improper footwear or boots. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.