Citation Nr: 21008193 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-40 517 DATE: February 11, 2021 ORDER Service connection for hepatitis C is denied. Service connection for lichen planus, to include as secondary to hepatitis C, is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected hypertension, is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with hepatitis C and lichen planus. 2. The weight of the competent and probative evidence is against a finding that hepatitis C or lichen planus is causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for an award of 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 an award of service connection for lichen planus, to include as secondary to hepatitis C, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the U.S. Army Reserve from April 1974 to May 1982. Her service included a period of active duty for training from June 1974 to August 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. In April 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before that Board in June 2019 and October 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In the June 2019 remand, the Board directed the AOJ to undertake records development and to afford the Veteran VA examinations in connection with her claims. In the October 2020 remand, the Board found that the AOJ had substantially complied with the request for records development, but requested further VA examinations and/or opinions with regard to the Veteran’s claims of entitlement to service connection for hepatitis C and GERD. The AOJ obtained new VA examinations and/or opinions on both issues in November 2020. The Board finds that the AOJ has substantially complied with the June 2019 and October 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, 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); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 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) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). 1. Service connection for hepatitis C The Veteran contends that her hepatitis C was incurred in or caused by service. Specifically, she contended at her April 2019 hearing that it was due to exposure to toxic chemicals while serving at Fort McClellan, Alabama. She also testified that it was due to being inoculated by jet air guns in service. The record has also reasonably raised the theory that hepatitis C resulted from treatment in service for gynecological conditions. As an initial matter, the Board notes that Veteran has a current diagnosis of hepatitis C. Therefore, the first element of service connection has been established. However, the weight of the competent and probative evidence is against a finding that the Veteran’s current disability may be associated with service. The Board therefore finds that the preponderance of the evidence is against the claim. In an April 2007 private treatment record, K.L., M.D. noted that the Veteran had evidence of prior hepatitis A and B infection, stating that she had acquired them from a blood transfusion when she had an ectopic pregnancy in 1973. He also stated in a February 2009 treatment record that the Veteran tested positive for hepatitis B antibodies, stating that she most likely acquired it in 1972 when she had a blood transfusion with treatment for an ectopic pregnancy. A March 1978 service treatment record (STR) indicated that the Veteran had two tubal pregnancies, the first in 1970 and the second in 1972, both of which were prior to her service. Finally, a March 1979 STR shows that the Veteran was treated for vaginal itching at that time; a January 1980 STR shows a diagnosis of vaginitis by history; a September 1980 STR shows a diagnosis of probable vaginitis; and a March 1981 STR again shows treatment for vaginal itching. The Veteran was afforded a VA examination in connection with her claim in November 2020. The examiner noted that the Veteran had a diagnosis of hepatitis C and that she reported being diagnosed after attempting to give blood around 1994. The examiner also noted that the Veteran reported having ectopic pregnancies in the 1970s and vaguely remembered having a blood transfusion prior to her active duty service, and that available medical treatment records documented a diagnosis and treatment for hepatitis C in 1994. The examiner offered an unfavorable nexus opinion, reasoning that STRs were negative for a diagnosis of hepatitis C or treatment for hepatitis C virus (HCV) during active duty. She stated that there were no reported or documented exposure risks during active duty aside from the claimed air gun vaccinations to account for acquiring HCV during that time. She noted that medical literature to date established that IV drug use and blood transfusions prior to 1992 were the primary modes of transmission of HCV, and that while air gun injectors have biologic plausibility in transmitting HCV, study data had failed to support that such vaccination procedures actually contributed to transmission of HCV. Continuing on, the examiner found that the Veteran’s pre-service treatment for a ruptured ectopic pregnancy in 1970/1972, during which time she reportedly received a blood transfusion, represented a major and well-established risk factor for her development of HCV. She stated that given that asymptomatic disease is common for HCV, and with the lack of routine screening for viruses in donated blood until 1992, the Veteran’s delayed diagnosis was medically consistent with the nature of the disease. The examiner also addressed the Veteran’s contention that hepatitis C was due to chemical exposure at Fort McClellan, stating that there was no medical or physiologic data to support that exposure to chemicals (PCB) could or would contribute to the viral transmission of HCV, which is considered a blood-borne illness. She also addressed the theory that hepatitis was due to treatment for gynecological conditions in service, finding that the theory was not supported by any medical evidence. She stated that the documented treatments during service for vaginosis/vaginitis in 1980/1981 were noninvasive, requiring no procedural or surgical interventions by which exposure to HCV could or would occur, and that these conditions themselves were not associated with transmission of HCV. In conclusion, the November 2020 examiner opined that given the high likelihood of viral transmission through blood transfusion that existed in the 70s, and in light of the Veteran’s history, it was considered more likely than not that her chronic hepatitis C was incurred prior to her military service. She further opined that there was no evidence of any symptoms of progression of viral hepatitis during active duty to support a claim for aggravation of hepatitis during service. The Board finds the opinion of the November 2020 VA examiner highly probative and assigns it significant weight. The opinion was based on review of the Veteran’s record, including her own reports, the medical record, and her examination. The examiner’s findings are consistent with the record and supported by a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board has considered a May 2019 letter from Dr. L, in which he stated that he had treated the Veteran for hepatitis C infection and that the Veteran was not sure how she became infected. Dr. L. stated that one possibility was that she received air gun inoculations from the U.S. Military when she was much younger, and that that source of hepatitis C infection had been postulated as a major source of infection in patients that were previously in the U.S. Military. The Board finds the May 2019 statement of Dr. L. inadequate for an award of service connection. In short, he expressed his opinion in terms of possibility, rather than probability. The statement is speculative in nature and entitled to very little weight. There is no other medical evidence suggesting a link between the Veteran’s hepatitis C and her service. Additionally, while the Veteran is competent to report symptoms she has experienced first-hand, to include those associated with hepatitis C, a determination as to whether her hepatitis C is related to service is a complex matter requiring medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Here, there is no evidence that the Veteran has any such expertise. In light of the foregoing, the Board must find that the preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, supra. 2. Service connection for lichen planus, to include as secondary to hepatitis C The Veteran contends that her lichen planus was incurred in or caused by service, to include as due to chemical exposure at Fort McClellan. She also contends that it is secondary to hepatitis C. Specifically, she stated in her August 2017 substantive appeal that lichen planus appeared while dealing with hepatitis C after a period of time. At the outset, the Board notes that a June 1974 STR shows that the Veteran was taking an antibiotic for acne at that time. A February 2009 record from Dr. L. indicates that the Veteran had a recent diagnosis of lichen planus. The Veteran was afforded a VA examination in connection with her claim in January 2020. The examiner found that the Veteran had a diagnosis of lichen planus, and noted that she reported that she started to have an itchy rash on her thighs and legs after she started treatment for hepatitis C. The examiner offered an unfavorable nexus opinion, reasoning that while the June 1974 STR showed treatment for acne, the Veteran’s STRs were silent for any other treatment for a skin condition. The examiner further cited to the 2009 record from Dr. L. which noted a recent diagnosis of lichen planus; stated that the Veteran did not have lichen planus prior to service; and emphasized that the condition had been diagnosed just prior to 2009, as noted by Dr. L. in the claims file. She further opined that the Veteran’s lichen planus had not been aggravated by hepatitis C, but also opined that lichen planus was more likely due to the hepatitis C that the Veteran currently had. In support of that opinion, she cited to medical literature which supported a causal relationship between the two conditions. Regarding direct service connection, however, she opined that it was less likely than not that the Veteran’s lichen planus started in service, to include as a result of chemical (PCB) exposure at Fort McClellan. The Board finds the opinion of the January 2020 VA examiner highly probative and assigns it significant weight. The opinion was based on review of the Veteran’s record, including her own reports, the medical record, and her examination. The examiner’s findings are consistent with the record and supported by a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). While the examiner offered a favorable nexus opinion that the Veteran’s lichen planus was caused by hepatitis C, as noted above, the Veteran is not service-connected for hepatitis C. Service connection on a secondary basis is therefore not warranted. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). There is no other medical evidence suggesting a link between the Veteran’s lichen planus and her service. Additionally, while the Veteran is competent to report symptoms she has experienced first-hand, to include itching and rashes, a determination as to whether her lichen planus is related to service, in the absence of any allegation of continuity of symptoms since service, is a complex matter requiring medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Here, there is no evidence that the Veteran has any such expertise. In light of the foregoing, the Board must find that the preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for GERD, to include as secondary to service-connected hypertension, is remanded. The Veteran contends that her GERD was incurred in or caused by service, to include as due to chemical exposure at Fort McClellan and tear gas chamber training. The Board finds that the record has also reasonably raised the theory that GERD is secondary to service-connected hypertension. The Veteran was afforded a VA examination in connection with her claim in November 2020. The examiner found that the Veteran had a diagnosis of GERD and noted that known risk factors of GERD included hiatal hernia, obesity, pregnancy, certain medications, and dietary factors. Of particular relevance, the examiner noted that calcium channel blockers could cause reflux by inducing LES hypotension, and that medical treatment records from 2009 documented the use of a calcium channel blocker for the treatment of hypertension in conjunction with the active use of Prilosec. While the November 2020 examiner offered opinions as to direct service connection, and as to whether the Veteran’s GERD was secondary to hepatitis C, she did not offer an opinion as to whether GERD was secondary to the Veteran’s service-connected hypertension. Inasmuch as her opinion reasonably raises the theory that the Veteran’s GERD is secondary to hypertension, the Board finds that a remand for an addendum opinion is warranted.   This matter is REMANDED for the following action: 1. Arrange to provide the record on appeal to the VA examiner who offered an opinion in November 2020 regarding the etiology of the Veteran’s GERD. After again reviewing the record, the examiner should offer an opinion as to whether it is at least at likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s GERD has been a) caused or b) aggravated (i.e., worsened beyond natural progression) by her service-connected hypertension. In so doing, the examiner should address the portion of her November 2020 opinion in which she found that certain medications, including calcium channel blockers, were a risk factor for GERD, and that a 2009 medical treatment record indicated that the Veteran took a calcium channel blocker to treat hypertension. The examiner should also offer an opinion as whether it is at least as likely as not that the Veteran’s GERD is related to tear gas chamber training she underwent during service. If the November 2020 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.