Citation Nr: 21076683
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 04-25 878
DATE: December 27, 2021

ORDER

Entitlement to service connection for hepatitis C is denied. 

Entitlement to service connection for Lyme disease is denied.

Entitlement to service connection for fibromyalgia, as secondary to Lyme disease, is denied.

Entitlement to an initial 30 percent rating is granted from September 21, 1999, for left knee disability described as patellofemoral syndrome, subject to controlling regulations governing the payment of monetary awards. 

FINDINGS OF FACT

1. Hepatitis C did not manifest during service or for several years thereafter, and is not related to active duty service.

2. Lyme disease did not manifest during service or for several years thereafter, and is not related to active duty service.

3. Fibromyalgia is neither caused nor aggravated by service-connected disease or injury.

4. During the appeal period, the Veteran's left knee instability symptomatology more nearly approximates severe recurrent subluxation or lateral instability.

CONCLUSIONS OF LAW

1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for Lyme disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for an initial 30 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1974 to October 1974 and from August 1985 to January 1990; additionally, she had service in the U.S. Army Reserve.

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). 

In November 2004, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. 

In a July 2005 decision, the Board of Veterans' Appeals (Board), inter alia, denied service connection claims for hepatitis C, Lyme disease, and fibromyalgia. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In December 2006, the parties filed a Joint Motion for Partial Remand (JMPR). The following month, the Court granted the JMPR and remanded these matters to the Board for actions consistent with the JMPR. 

In February 2008, the Board remanded the service connection claims for further development. 

In an October 2008 rating decision, the Regional Office (RO) granted service connection for left knee disability, assigning a noncompensable (zero percent) rating, effective September 21, 1999. In a January 2011 rating decision, the RO increased the rating for left knee disability to 30 percent effective September 23, 2009. 

In August 2017, the Board, inter alia, remanded the claims on appeal to the AOJ for further development. After accomplishing the above development, the RO granted a 10 percent initial rating from September 21, 1999, (as reflected in a September 2021 rating decision) and the AOJ continued to deny the Veteran's other claims (as reflected in a September 2021 supplemental statement of the case (SSOC)). 

As a final preliminary matter, while the Board notes that the August 2017 remand directed the AOJ to issue an SOC to address the Veteran's claim for entitlement to a total disability rating based upon individual unemployability (TDIU) and the Veteran timely appealed the denial of a TDIU (as reflected in a July 2021 VA Form 9), that matter has not yet been certified via a VA Form 8 and thus is not before the Board for adjudication. 

Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C.§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). 

Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Secondary service connection may be established for a disability that is either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a)-(b); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

1. Entitlement to service connection for hepatitis C

The Veteran claims that her hepatitis C is due to her military service. Specifically, she asserts that she developed hepatitis C as a result of exposure to needles during medical specialist training. 

The Veteran's service treatment records (STRs) do not contain any complaints, diagnoses, or treatment related to hepatitis C.

Post-service, treatment records indicate that the Veteran was first diagnosed with hepatitis C virus (HCV) in September 1996. A letter from Dr. C. dated in October 1996 notes that the Veteran was initially seen in September 1996 with repeatedly reactive hepatitis C antibody testing with elevated liver profile. This testing was conducted because the Veteran's husband was found to be hepatitis C positive, which "[p]resumably he got it from a previous sexual partner." Dr. C. stated that the Veteran had no other risk factors, including blood transfusions and IV drug transfusions. 

Pursuant to the Board remand, VA medical opinion was obtained in August 2021. The examiner noted the Veteran's hepatitis C diagnosis, indicating that she had reviewed the Veteran's claims file to include the Veteran's report that she acquired the condition in-service while using compromised needles in medical specialist training. The examiner stated that it was less likely than not that the Veteran's hepatitis C was related to her active service, to include any exposure to compromised needles in service. As rationale, she stated that there was no evidence of any exposure to compromised needles during service. In addition, she noted that the STRs reflected that the Veteran did not have any symptoms related to hepatitis C (to include any abnormal liver condition) in service. Notably, the Veteran did not test positive for HCV until six years following her discharge in 1990. 

The Board finds that the August 2021 VA opinion is entitled to substantial probative weight, as the examiner accurately reviewed the evidence of record and explained the reason for her conclusion based on the evidence. The VA examiner's opinion explained that the evidence did not document any in-service exposure to compromised needles during medical specialist training. Moreover, she noted that there was no evidence of any HCV or related symptoms until six years following discharge. Therefore, she found it less likely than not that her condition was related to her active service.  The negative nexus opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record. To this end, the Veteran is competent to testify as to her observations, report in-service risk factors (i.e., exposure to compromised needles), and post-service symptoms that were later diagnosed as hepatitis C. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Lay witnesses are also competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, however, the Veteran is not competent to relate her hepatitis C to in-service exposure to compromised needles because this etiological question relates to internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d 1377 at n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer).

In addition, the Board affords probative weight to the October 1996 letter from Dr. C. that noted the Veteran had no other risk factors for hepatis C, indicating that the condition may have been acquired from her husband. Thus, the evidence does not support a finding that the Veteran's condition is related to service.   

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for hepatitis C. The benefit-of-the-doubt doctrine is therefore not for application, and this claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

2. Entitlement to service connection for Lyme disease

The Veteran contends that her Lyme disease is related to a tick bite in active service in August 1985. 

The Veteran's STRs from active service are silent for complaint, treatment or diagnosis of Lyme disease or any related symptoms. 

Following active service, the Veteran's medical records from the U.S. Army Reserves dated in May 1999 indicate that the Veteran had a tick bite in 1995 that she was treated with antibiotics, which largely resolved the issue. She was later diagnosed with Lyme disease in 1997. 

Pursuant to the Board remand, VA medical opinion was obtained in August 2021. The examiner noted a July 2009 diagnosis of residual Lyme disease. She noted the Veteran's report that she was bitten by a tick in service and current complaints of muscle aches, pain, and fatigue. The examiner opined that it was less likely than not that her Lyme disease was related to active service, to include an in-service tick bite. As rationale, she stated that the May 1999 report of medical history from the U.S. Army reserves indicated that the Veteran had a tick bite in 1995, which was treated with antibiotics and mostly resolved. The Veteran was later diagnosed with Lyme disease in 1997. In addition, the examiner noted that a Lyme disease titer was done in July 2009, which was negative. Thus, the onset of the disease was several after active service discharge in 1990. 

The Board accords the August 2021 VA opinion substantial probative weight, as the examiner accurately reviewed the evidence of record and explained the reason for her conclusion based on the evidence. Her opinion also explained that the evidence did not support a finding that an in-service tick bite caused residuals of Lyme disease. Rather, the tick bite actually occurred in 1995 when she was in the U.S. Army Reserves and not August 1985, as she claimed. Moreover, she noted that there was no evidence of Lyme disease until approximately five years following active service discharge. Therefore, she found it less likely than not that the Veteran's condition was related to her active service.  The negative nexus opinion is entitled to substantial probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. There is no contrary medical opinion in the evidence of record. As noted above, the Veteran is competent to testify as to her observations, report in-service risk factors (i.e., exposure to a tick bite), and post-service symptoms that were later diagnosed as Lyme disease. See Jandreau, 492 F.3d at 1376-77; Buchanan v. Nicholson, 451 F.3d at 1336. Here, however, the Veteran is not competent to relate her residuals of Lyme disease to in-service exposure to a tick bite because this etiological question relates to internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d 1377 at n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer).

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for Lyme disease. The benefit-of-the-doubt doctrine is therefore not for application, and this claim must be denied.

3. Entitlement to service connection for fibromyalgia

The Veteran contends that her fibromyalgia is secondary to her Lyme disease. However, because the Board herein denies service connection for Lyme disease, there is no legal basis for granting service connection for fibromyalgia. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection, pursuant to 38 C.F.R. § 3.310(a), for a secondary condition. Thus, the matter of service connection for fibromyalgia as secondary to Lyme disease is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for fibromyalgia disease on a secondary basis as a matter of law. The benefit of the doubt doctrine is thus not for application, and the claim must be denied. 

4. Entitlement to increased ratings for left knee disability

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999).

During the pendency of the Veteran's appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Under the prior version of DC 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257.

Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 38 C.F.R. § 4.71a, DC 5257 (2021).

In cases of patellar instability, a 30 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker.

Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Per Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021).

The Veteran is in receipt of an initial 10 percent evaluation for left knee injury from September 21, 1999 and a 30 percent rating from September 23, 2009 under DCs 5014-5257 for patellofemoral syndrome of the left knee 38 C.F.R. § 4.71a. 

DC 5258 provides for a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 

Under DC 5259, a 10 percent evaluation is assigned for removal of semilunar cartilage which is symptomatic. 

DC 5260, limitation of flexion of a leg, provides a 10 percent rating if flexion is limited to 45 degrees, and a 20 percent rating if flexion is limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees. 

DC 5261, limitation of extension of a leg, provides a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. 

Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38C.F.R. §4.71; Plate II. Separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004. 

The terms slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38C.F.R. §§4.2, 4.6. The Court has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint's functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time, functional loss due to flare-ups, fatigability, incoordination, and pain on movement. DeLuca v. Brown,8 Vet. App. 202, 206-07(1995); Mitchell v. Shinseki,25 Vet. App. 32, 44(2011). In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158(2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board notes that there are additional diagnostic codes that pertain to the knee. However, as set forth below, the Veteran's left knee disability symptoms in this case have not either manifested as or been attributed to ankylosis, semilunar cartilage removal, impairment of the tibia or fibula, or genu recurvatum. Therefore, separate or higher ratings under the additional knee diagnostic codes do not merit further consideration. 38 C.F.R. §§ 4.14, 4.71a, DCs 5256, 5259, 5262, 5263.

Turning to the relevant evidence of record, the February 2007 VA examination report noted the Veteran's history of left knee patellofemoral syndrome. She described pain and tightness in her knee. Physical examination revealed range of motion flexion to 135 degrees and extension to five degrees.  The Veteran reported pain on extension beyond five degrees but no pain on flexion. 

The April 2008 VA examination report noted her left knee disability. Physical examination revealed tenderness in the suprapatellar aspects of the knee; extension was to five degrees and flexion was to 135 degrees; pain set in at five degrees extension and 135 degrees flexion. There was no additional range of motion loss due to pain, fatigue, weakness, or incoordination of the knee joint.

September 2009 private treatment records from Dr. N. found severe instability of the Veteran's left patella to the point where there was little quadriceps that could be palpated.  He also implied-although did not explicitly state-that that the severe instability of her left patella has been present since an in-service knee injury in 1991.

Pursuant to the Board remand, VA medical examination and opinion was obtained in August 2021 to assess the likelihood that the severe instability of the patella that Dr. N. found in September 2009 existed earlier, including at least as early as September 1999 (when the Veteran's claim was received). The examiner opined that it was at least as likely as not that severe instability of the Veteran's left patella noted in in September 2009 was present earlier than 2009, including at least as early as September 1999. As rationale, she stated that she reviewed the Veteran's records, including her April 1991 STR documenting the left knee injury while doing physical training. She also cited the June 1993 report of medical history indicating that the left knee disability left the Veteran immobilized for four months. She also noted the pain in the Veteran's suprapatellar aspect of left knee and as well as left knee instability. Based on the review of the Veteran's medical records and upon examination of the Veteran, the examiner concluded that severe instability of the Veteran's left patella was present at least as early as September 1999. 

Regarding the present level of left knee disability, the Veteran reported pain, weakness, stiffness, swelling. Regarding functional loss, she stated that "she has to sit down to shower, hold to bars in the tub, had to get an emergency button because she lives alone, pain is worse with prolonged walking, sitting, standing, go up and down stairs, doing house chores, bending, [and] squatting." She also stated that she "falls due to her left knee instability." 

Range of motion testing revealed flexion to 90 degrees and extension to 10 degrees, with pain noted on active motion, passive motion, weight-bearing, non-weight-bearing, and non-movement, which causes functional loss (as described above). The Veteran was unable to perform repetitive-use testing with at least three repetitions due to her fear of pain. The Veteran denied any flare-ups of the left knee. There were no other additional factors contributing to her left knee disability; there was no muscle atrophy or ankylosis. 

The examiner noted recurrent subluxation/persistent instability, specifically recurrent patellar instability. The Veteran required a cane and brace prescription for ambulation.

Upon review of the evidence, the Board finds that based on Dr. N and the August 2021 VA examiner's specific references to a history of and current severe instability, the evidence is at least evenly balanced as to whether the Veteran's left patella have more nearly approximated severe recurrent subluxation or lateral instability since September 21, 1999. Dr. N found severe instability of the Veteran's left patella to the point where there was little quadriceps that could be palpated, while the August 2021 VA examiner opined that severe instability of the Veteran's left patella was present at least as early as September 1999. Moreover, there was evidence of recurrent patellar instability and the Veteran required a prescription for a cane and brace for ambulation.

As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial 30 percent rating is warranted for left knee lateral instability. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3,

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Kovacs, 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.