Citation Nr: 21075976 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-38 473 DATE: December 22, 2021 ORDER New and material evidence having been introduced, the claims for service connection for hepatitis C and for a bilateral knee condition are reopened. Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a bilateral knee condition is denied. FINDINGS OF FACT 1. The claims for service connection for hepatitis C and a bilateral knee condition were denied in an unappealed February 1981 Board of Veterans' Appeals (Board) decision. 2. Evidence introduced into the record following the February 1981 Board decision, by itself or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the Veteran's claims for service connection for hepatitis C and for a bilateral knee condition. 3. The record does not reflect a current hepatitis C diagnosis, nor has the Veteran ever been diagnosed with hepatitis C or other liver disease. 4. A preponderance of the evidence indicates the Veteran's bilateral knee disorders are unrelated to active duty service, nor have they been caused or aggravated by service-connected disability, including a low back disability. CONCLUSIONS OF LAW 1. The February 1981 Board decision is final. 38 U.S.C. § 1705 (c); 38 C.F.R. § 20.1103. 2. The evidence received since the February 1981 Board decision is new and material, and the claims for service connection for hepatitis C and for a bilateral knee condition are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for a condition of the bilateral knees have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to September 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to testify before the Board on several occasions, but those hearings were variously cancelled or postponed. In November 2021 correspondence, the Veteran stated that he wished to withdraw his hearing request. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection New and Material Evidence Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran's claims for service connection were originally denied in a February 1981 Board decision. The Veteran was informed of the decision, but did not appeal or submit new and material evidence within one year; hence, the decision became final. Since that time, the Veteran has advanced additional evidence, including lay statements proposing new theories of entitlement to the benefits sought, as well as VA medical records, and has undergone VA examinations in connection with these claims. The Board finds this evidence "new," because it postdates the aforementioned rating decisions. The Board also finds the new evidence "material," because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claims. Consequently, the claims of service connection for hepatitis C and for a bilateral knee condition are reopened. The Board finds that there is no prejudice to the Veteran in proceeding to adjudicate the reopened claims on the merits without remand given that the RO adjudicated the claims on the merits and has provided the Veteran with examinations, obtained records, provided him opportunity to submit statements, and he has had multiple opportunities to attend a hearing before withdrawing his hearing request. Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (holding that when the Board addresses a question not addressed by the RO, "it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby"). Entitlement to service connection for hepatitis C Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, 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 other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record shows that the Veteran served for a period of approximately 21 days at Camp Lejeune. Certain diseases are presumptively associated with exposure to contaminants present in the water supply at Camp Lejeune. 38 C.F.R. §§ 3.307, 3.309. In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a claimant must show the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran suffered from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). Based on the duration of the Veteran's service at Camp Lejeune, exposure to contaminated drinking water is conceded. However, hepatitis C is not listed among those conditions presumptively associated with such exposure. Nevertheless, service connection on the basis of exposure to contaminated water is available where the evidence shows an actual etiological link between a current disability and in-service exposure. In this case, the record does not reflect a diagnosis of hepatitis C, either in service or at any point during the appeal period, nor is there any objective evidence that the Veteran has ever had liver disease of any kind. The Veteran has stated that he was hospitalized for "acute hepatitis" while in service in 1970, following complaints of fatigue and diarrhea; however, service records do not reflect any such hospitalization, nor any diagnosis of hepatitis, and the only hepatitis testing reflected in the record has been negative. Even assuming, arguendo, that the Veteran was beset by hepatitis in service, the record is altogether bare of evidence of a current disability, including a diagnosis of hepatitis C or any residuals at any point during the appeal period. A VA examiner with whom the Veteran met in February 2019 confirmed that the record is bare of evidence of hepatitis C, and that the Veteran has no current signs or symptoms associated with liver disease. An August 2019 VA examiner confirmed that "[t]here is no pathology to render a diagnosis for the claimed hepatitis C," adding, "[t]here is no evidence that the [Veteran] now has or ever had hepatitis C," and that "[t]here is also no evidence of hepatitis B currently or in the past or of hepatitis from any cause." October 2019 testing was negative for hepatitis C. The Board notes that the above-summarized evidence is uncontroverted by any objective evidence of record. In light of the lack of evidence of any diagnosis of hepatitis C in the record, the Board finds that the Veteran has no such disability, and as such, the preponderance of the evidence is against his claim of entitlement to service connection therefor. The claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for a knee condition The Veteran has averred that his bilateral knee condition is related to service, or in the alternative, that it has been caused or aggravated by his service-connected lumbar spine disability and/or medications prescribed therefor. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2018). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The record reflects current diagnoses of chondromalacia of the left knee with a history of meniscus tear, and right knee osteoarthritis. Service records reflect April 1970 stress fracture or strain of the bilateral knees treated with short term duty restriction, with no evidence of ongoing symptoms or residuals. The Veteran underwent a VA examination in connection with his knee conditions in March 2019, the examiner confirming the presence of current diagnoses. Pursuant to an August 2018 VA examination, the examiner opined that the Veteran's in-service knee injuries, diagnosed as a stress fractures and knee strains, "are conditions that heal fully with rest and without causing long-term sequelae," that there is no evidence of chronicity of care to suggest long-term residuals of those injuries, and that "it is not medically plausible that the 1970 stress fracture could cause the currently diagnosed [bilateral knee disabilities,] and there is no evidence that [the currently diagnosed conditions] existed during military service," adding that "records do not document an in-service injury or condition likely to result in or predispose [the Veteran] to development of [the currently diagnosed conditions.]" These findings are based on an in-person examination of the Veteran and a review of the record, are fully reasoned and explained, are in general accord with the evidence of record, and are uncontroverted by any objective or competent opinion evidence of record. Accordingly, the Board affords the assessment substantial probative weight on the question of etiology in this case. The Veteran has averred that in the alternative, his knee conditions have been caused or aggravated by a service-connected lumbar disability or treatment therefor. The VA examiner with whom the Veteran met in March 2019 explained, however, that "[t]here is no objective medical evidence establishing a direct cause and effect relationship between left knee meniscus tear and chondromalacia and right knee sprain...[and a lumbar spine disability]...[as] these are distinct musculoskeletal structures without direct effect." This assessment too is uncontroverted by objective evidence in the record, or by competent opinion evidence, and is reasoned and based on an in-person examination of the Veteran and review of the record. Thus, the Board affords it substantial probative weight on the question of secondary service connection in this matter. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to his assertions with respect to the etiology of his knee conditions in this case. While he is competent to report his experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his conditions. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his symptoms are relevant, competent, and credible; however, the question of the etiology of his knee disorders is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran's diagnosed knee disorders are related to active service, or that they have been caused or aggravated beyond the normal course of progression by his service-connected lumbar disability. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for disorders of the right and left knees must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.