Citation Nr: 21012783 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-44 969 DATE: March 5, 2021 ORDER Entitlement to service connection for hepatitis residuals, to include fatigue is granted. Entitlement to service connection for right knee degenerative arthritis is granted. FINDINGS OF FACT 1. The Veteran’s present residuals of hepatitis, including fatigue, are at least as likely as not caused by his in-service hepatitis. 2. The evidence is at least in equipoise that the Veteran’s right knee degenerative arthritis is a chronic condition incurred during military service and continuing since service. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis residuals, to include fatigue are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1963 to January 1967. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In March 2020, the Veteran testified at a video conference hearing in the Buffalo RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. Unfortunately, audio malfunctions prevented production of a transcript of that hearing. The Veteran was notified in August 2020 of the malfunctions, and he was offered an opportunity for another hearing. The Veteran responded in writing that he did not wish to appear at another hearing, and requested the Board consider his claims based on the current evidence of record. See September 2020 Hearing Related. Service Connection 1. Entitlement to service connection for hepatitis residuals, to include fatigue is granted. The Veteran seeks entitlement to service connection for residuals of hepatitis to include fatigue. The Veteran has argued that he has experienced residuals including fatigue since his in-service treatment for hepatitis in Taiwan. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Here, the Veteran is presently diagnosed with hepatitis B and cholangiocarcinoma. The Veteran’s active symptoms include daily, constant fatigue and weakness. See February 2021 Compensation and Pension (C&P) Examination. The Veteran’s medical records show that he was diagnosed with hepatitis in April 1966, while serving on active duty in Taiwan. Military records also show the Veteran traveled to Vietnam during his service in Taiwan. The Veteran was hospitalized for approximately one month in Taipei. Although his jaundice and other acute symptoms resolved rapidly, follow-up appointments show the Veteran experienced continued malaise and fatigue. He was not allowed to return to immediate duty upon release from the hospital, as his condition was closely monitored for subsequent months. See Service Treatment Records – Medical. Another military veteran in the same unit has provided a letter stating he was also required to receive a “preventative” hepatitis injection after the Veteran was hospitalized in Taipei. See January 2020 Buddy / Lay Statement. In February 2021, the Veteran underwent a VA examination for his liver problems. The examiner reviewed the Veteran’s claim file and performed an in-person examination. The examiner wrote an opinion that it was at least as likely as not that the Veteran’s cholangiocarcinoma condition was caused by his hepatitis infection in service in 1966. The examiner also described the Veteran’s liver problems as “status post liver flukes.” Liver flukes are parasitic worms common in Asia, which can cause hepatitis and other liver problems. See December 2019 Correspondence; May 2020 Medical Treatment Record – Non-Government Facility. Similarly, the Veteran’s primary care provider has written a letter attributing the Veteran’s present liver problems to his in-service hepatitis which was likely from exposure to liver flukes during his service in Asia. She indicated that her opinion was based on her knowledge of the Veteran’s personal case, as well as independent research. See May 2020 VA Medical Treatment Record. The Board is mindful that the Veteran’s service treatment records do not contain specific mention of liver flukes. Nonetheless, the Veteran has provided evidence in the form of academic and medical articles which indicate liver flukes are common in south Asia, and are one of the principal reasons that hepatitis is more prevalent in Asia than in other parts of the world. See December 2019 Correspondence. A VA examination in March 2016 yielded an opinion that the Veteran’s fatigue was less likely than not caused by his in-service hepatitis, because there were “other plausible explanations” for such fatigue. See March 2016 C&P Examination. Similarly, a VA examiner in May 2020 wrote an opinion that evidence did not show a chronic hepatitis condition in service, as the Veteran’s “infectious hepatitis” was shown to resolve. The Veteran was not diagnosed with hepatitis B until March 2015. That examiner wrote that the evidence was insufficient to link the Veteran’s present condition to his in-service infectious hepatitis. See May 2020 C&P Examination. The weight of the probative evidence of record supports a finding that the Veteran’s present residuals of hepatitis, including fatigue, are at least as likely as not caused by his in-service hepatitis. Although VA examiners have offered various explanations for the Veteran’s post-service liver problems which do not link them to his in-service hospitalization for hepatitis in Taiwan, the Board finds the Veteran’s lay statements, as well as statements from his primary care provider and the February 2021 examiner’s explanations to be more probative. The elements of service connection are satisfied, and the claim is granted. 2. Entitlement to service connection for right knee degenerative arthritis is granted. The Veteran seeks service connection for degenerative joint disease of his right knee. The Veteran’s arthritis (degenerative joint disease) is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). During active service, the Veteran was treated for a dislocated patella of his right knee from an injury off duty in February 1965. Service treatment records show he was fitted for a cylindrical cast. Upon separation from service, the military examiner indicated no complications or additional sequalae. See Service Treatment Records – Medical. The Veteran has reported that his initial injury during active service continued to bother him since that time and ultimately developed into arthritis. The Veteran is competent to report lay-observable factors, such as his continued pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the evidence of record does not show that the Veteran has medical training necessary to diagnose his own condition. The Board finds the Veteran’s report of continued pain to be credible. Medical records show the Veteran’s later complaints and treatment for his right knee included indications that he experienced pain and increased sensation of pressure behind his patella after exertion. In July 2017, a VA physician documented pain in the Veteran’s right patellar tendon. See July 2017 VA Medical Treatment Records. The Veteran underwent a VA examination in March 2016 for his right knee condition. The examiner confirmed the diagnosis of degenerative arthritis. The Veteran indicated continued right knee pain over the years, including stiffness, crepitus, and difficulty on stairs and in rising from a seated position. The examiner wrote an opinion that it was less likely than not (less than 50 percent probability) that the Veteran’s arthritis was incurred in or caused by the Veteran’s in-service knee injury. The examiner wrote that the Veteran’s knee arthritis was bilateral tricompartmental arthritis, which was more likely multifactorial. The examiner observed that imagery from 2013 of the Veteran’s knees showed the left knee was worse than the right, and there was no meniscal tear. See March 2016 C&P Examination. (Continued on the next page)   The evidence is at least in equipoise that the Veteran’s right knee degenerative arthritis is a chronic condition incurred during military service and continuing since service. The Veteran’s credible reports of continued knee pain are corroborated by medical records showing his knee pain was focused behind the patella. Such reports are more probative than the examiner’s explanation that the Veteran’s left knee had worse arthritis than his right knee, as that distinction does not address the underlying causes of either knee condition. The elements of service connection are satisfied and the claim for service connection is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.