Citation Nr: 21016040 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-20 446 DATE: March 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for hepatitis C is granted. REMANDED Entitlement to a temporary total rating under 38 C.F.R. § 4.29 based on hospitalization for complications from service-connected hepatitis C is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise that his tinnitus is etiologically related to military noise exposure. 2. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise that he incurred the hepatitis C virus in service when immunized by air gun injection. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1972 to July 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing; however, a written transcript of the proceeding could not be produced due to technical difficulties. In May 2019, the Veteran was notified and provided the opportunity for another hearing. The Veteran subsequently testified at a virtual tele-hearing before the undersigned VLJ in December 2020. A transcript of the hearing has been associated with the record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53-56. 1. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which he contends was incurred in service due to exposure to excessive military noise. The Veteran asserts that he was exposed to loud noise from weapons fire and jet aircraft during active duty. He maintains that he began experiencing ringing in his ears during service and that the symptoms have continued ever since. As an initial matter, the Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, based on his lay testimony, the Veteran’s exposure to excessive military noise during service is conceded by the Board. Moreover, the Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence alone. Charles v. Principi, 16 Vet. App. 370 (2002). As such, there is no dispute that the Veteran has a current diagnosis of tinnitus. The question remaining before the Board is whether the Veteran’s current tinnitus is etiologically related to his in-service noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in the Veteran’s favor and finds that service connection for tinnitus is warranted. The Veteran underwent a VA audiology examination in July 2013. On examination, the Veteran reported that his tinnitus began during service while he was working on the flight line. The VA examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The examiner based this finding on “no evidence of acoustic trauma during active duty and no complaint of tinnitus in the service treatment records.” The Board finds this medical opinion to be inadequate because the examiner did not take into consideration the Veteran’s lay statements regarding his exposure to acoustic trauma during service and an in-service onset of symptoms of tinnitus. As such, the VA opinion, which is the only medical opinion of record, cannot serve as a basis to deny the Veteran’s claim for service connection. The Board acknowledges that the record does not contain an adequate medical opinion with regard to the etiology of the Veteran’s tinnitus. Nonetheless, the Board finds that there is sufficient evidence in the record to decide the claim. In the absence of an adequate medical opinion to the contrary, the Board accepts the Veteran’s lay statement that his tinnitus had its onset during service and that it has continued ever since. See Layno, 6 Vet. App. at 469-70. Based on the Veteran’s competent and credible statements regarding the in-service onset and continuity of his symptoms of tinnitus, the Board finds that the evidence is at least in equipoise that the Veteran’s tinnitus was caused by in-service noise exposure. Accordingly, resolving all reasonable doubt in the Veteran’s favor, service connection for tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for hepatitis C The Veteran contends that his currently-diagnosed hepatitis C was incurred in or caused by his active service. Specifically, the Veteran believes that he was exposed to the hepatitis C virus from a contaminated air gun injector used to administer immunizations during active service. The Veteran testified at the December 2020 Board hearing that he received inoculations by air gun during boot camp and that he observed the nurse wiping the gun with a blood-stained terrycloth towel in between immunizing service members. The Veteran maintains that he has no other risk factors for hepatitis C. He has specifically denied a history of alcohol use, intravenous or intranasal drug use, blood transfusion, tattoos, blood contact with another person, or high risk sexual behaviors. See May 2012 VA Form 21-526 Veterans Application for Compensation or Pension. According to VBA Fast Letter 04-13 (June 29, 2004), hepatitis C is spread primarily by contact with blood and blood products. The highest prevalence of hepatitis C infection is among those with repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). The Fast Letter further states that, although transmission through air gun injection is biologically plausible, there have been no case reports of hepatitis C being transmitted by such means. The Fast Letter concludes that it is essential that the examination report upon which the determination of service connection is made include a full discussion of all modes of transmission, and a rationale as to why the examiner believes the particular mode of transmission was the source of the veteran’s hepatitis C. The Veteran’s service treatment records do not reflect any manifestations or diagnosis of hepatitis C during active service. The post-service medical evidence shows that the Veteran has been diagnosed and treated for hepatitis C, as well as associated complications of cirrhosis of the liver and hepatic encephalopathy. Although the Veteran’s service treatment records do not show that the Veteran received immunizations via air gun injector, the Veteran is competent to report lay-observable events and symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board also finds the Veteran credible in this regard because there is nothing in the record that impugns his credibility. Furthermore, the Board notes that air gun injectors were in use during the Veteran’s period of active service. Therefore, resolving doubt in the Veteran’s favor, the Board finds that the Veteran did receive immunizations via air gun injector during his active service. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board further finds the Veteran credible in his assertion that he has no other risk factors for hepatitis C because the Veteran has been consistent in his statements, and his statements are not controverted by the evidence of record. However, the Veteran is not competent to relate his current hepatitis C to a particular risk factor or in-service event as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). To determine whether there is an etiological link between the Veteran’s current hepatitis C and the in-service air gun injections, the Board turns to the competent medical evidence of record. The Veteran was provided a VA examination in July 2013 in connection with his claim. The VA examiner opined that the Veteran’s hepatitis C was less likely than not incurred in or caused by air gun vaccinations in service, noting that while biologically plausible, there are no cases of hepatitis C virus due to air gun injections appreciated in the research. The examiner also alluded to the Veteran having undergone an appendectomy in childhood and back surgery in 1982 as possible risk factors for contracting hepatitis C. In a December 2018 medical opinion, the Veteran’s VA doctor, Dr. S., who is also the Director of Hepatology and Liver Transplantation at the Portland VA Medical Center (VAMC), opined that the Veteran’s hepatitis C is more likely than not due to the air gun vaccinations he received during service. In the opinion, Dr. S. stated that she has treated the Veteran’s condition for more than seven years and that he has no other risk factors for hepatitic C virus exposure other than the in-service vaccinations by air gun injector. Notably, Dr. S. also testified on the Veteran’s behalf at the December 2020 Board hearing. At the hearing, she further elaborated on her prior written opinion, stating that, based on his medical history, the only possible source for the Veteran’s hepatitis C was exposure to the air gun during service. She stated that due to the absence of any other risk factor, it is more likely than not that the air gun caused or resulted in the hepatitis C infection. Dr. S. also stated that a childhood appendectomy does not require a blood transfusion and is a procedure that is highly unlikely to be a source of hepatitis C, thus refuting the July 2013 VA examiner’s opinion. The Board finds the July 2013 VA opinion to be inadequate because the examiner did not consider the possibility that the Veteran contracted the hepatitis C virus from the in-service air gun injection. In this regard, the Board reiterates that VA has acknowledged that transmission of hepatitis C through air gun injections is biologically possible. See VBA Fast Letter 04-13. In contrast, the opinions provided by Dr. S., who has treated the Veteran’s condition for many years and is familiar with his medical history, acknowledged that vaccinations delivered via air gun injectors are a potential risk factor for developing hepatitis C and, thus, determined that the Veteran’s hepatitis C likely developed as a result of his in-service air gun injections given the lack of any other possible risk factors. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In summary, the Veteran has presented competent and credible evidence that he received vaccinations via air gun injectors during active service and that his medical history does not include any of the known risk factors for hepatitis C. His VA physician, Dr. S., provided the opinion that air gun injections are a risk factor for developing hepatitis C and that the Veteran’s medical history includes no other significant risk factors. Dr. S. also determined that it is more likely than not that the Veteran incurred the hepatitis C virus as a result of the in-service air gun injections. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran incurred the hepatitis C virus in service when immunized by air gun injection. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for hepatitis C have been met, and the Veteran’s claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Unfortunately, the claims remaining on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. As an initial matter, the Board notes that since the February 2016 statement of the case (SOC), medical evidence pertinent to the claims remaining on appeal, including VA treatment records, were associated with the claims file. However, the RO did not readjudicate the claims or issue a supplemental statement of the case (SSOC) as required by 38 C.F.R. §§ 19.31, 19.37. As such, remand is required for the RO to readjudicate the claims, with specific consideration of any additional evidence received since the February 2016 SOC. Notwithstanding the need for an SSOC, the Board also finds that the claims require additional evidentiary development, as outlined below, prior to appellate review. 3. Entitlement to a temporary total rating under 38 C.F.R. § 4.29 based on hospitalization for complications from service-connected hepatitis C is remanded. At the December 2020 Board hearing, the Veteran testified that he has been admitted to the hospital on multiple occasions due to his service-connected hepatitis C and its associated complications, including one hospitalization at the Portland VAMC that lasted 45 days. A total (100 percent) disability rating will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or other approved hospital for a period in excess of 21 days or hospital observation at VA’s expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. The Board notes that the Veteran’s claims file contains records pertaining to hospitalizations in July 2012 at Providence St. Vincent Medical Center and in July 2012 and August 2012 at the Portland VAMC. These hospitalizations were related to the complications from the Veteran’s hepatitis C; however, the records do not show that the admission lasted 45 days as reported by the Veteran at the Board hearing. Review of the Veteran’s VA treatment records detail that he has been hospitalized at various other times at private medical centers, including at Salem Hospital in March 2016 and at St. Vincent in November 2020. There is also a notation in the VA treatment records that the Veteran was admitted to a hospital in January 2021, however, the name of the hospital or details pertaining to the reason for the hospitalization were not recorded by the treating physician. The Board notes that these hospital records have not yet been requested or associated with the claims file. In light of the above, the Board finds that remand is warranted to contact the Veteran and request that he submit any outstanding private medical records that may be relevant to his claim for a temporary total rating under 38 C.F.R. § 4.29 based on hospitalization for complications from service-connected hepatitis C. Alternatively, he should be requested to identify and provide authorization for VA to obtain these records on his behalf. The RO must make reasonable efforts to obtain any records identified by the Veteran. 4. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss, which he contends was incurred in service due to military noise exposure. The Veteran asserts that he was exposed to loud noise from weapons fire and jet aircraft during active duty. He maintains that he noticed signs of hearing loss during service and that the symptoms have continued ever since. Pursuant to the decision herein, the Board has conceded the Veteran’s exposure to acoustic trauma during military service. The Veteran underwent a VA audiological examination in July 2013, during which he was confirmed to have a bilateral hearing loss disability for VA purposes. Although the VA examiner offered an opinion that the Veteran’s bilateral hearing loss is less likely than not related to military service, the opinion was based solely on the fact that the Veteran’s hearing acuity was within normal limits at his separation examination. This medical opinion provides an insufficient basis on which the Board can rely to deny a claim for service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of a hearing loss disability during service is not in and of itself fatal to a claim for service connection for bilateral hearing loss). In this regard, the examiner did not consider or discuss the relevance, if any, of the Veteran’s claimed exposure to hazardous noise during service or his contention of noticing signs of hearing loss during service that have continued ever since. Once VA undertakes the effort to provide an examination or medical opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is required to obtain an addendum etiology opinion as to the nature and etiology of the Veteran’s bilateral hearing loss before the Board can render an informed decision on the claim. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 5. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks entitlement to service connection for a left knee disability, which has been diagnosed as patella femoral degenerative joint disease. At the December 2020 Board hearing, the Veteran testified that he injured his knee during service while marching on guard duty; he went to the hospital and had fluid drained off his knee, which was wrapped in an ace bandage. He testified that he has continued to have left knee pain ever since service and has just learned to live with the pain. Service treatment records show that in May 1972 the Veteran reported left knee pain under the patella with increased activity and stress. An x-ray was negative. At that time, the Veteran reported a history of injury with hemarthrosis two years prior. An August 1972 service treatment record documents a “dressing change” for a left knee wound, though the circumstances or extent of the left knee wound are not documented. No left knee problems were documented on either the Veteran’s entrance or separation examinations. A veteran is presumed to be in sound condition when entering military service except for conditions noted on the entrance examination. To rebut this presumption of soundness, VA must establish clear and unmistakable evidence that (1) an injury or disease existed before acceptance and enrollment into service, and (2) that the preexisting condition was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). With respect to preexisting disabilities, if a disorder was not noted on entering service, VA must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for service under 38 U.S.C. § 1111. Significantly, only such conditions as are recorded in examination reports are considered to be noted. 38 C.F.R. § 3.304 (b). As discussed above, no left knee problems were noted on the Veteran’s entrance examination and he is therefore presumed sound upon entrance. However, as the service treatment records note that the Veteran reported a left knee injury with hemarthrosis prior to service, the evidence indicates that the Veteran may have had a preexisting left knee disability. As such, in order to rebut the presumption of soundness, VA must establish, by clear and unmistakable evidence, that any such preexisting condition was not aggravated by the Veteran’s service. The Veteran underwent a VA examination in July 2013. Upon examination, the examiner diagnosed the Veteran with patella femoral degenerative joint disease. The examiner opined that the Veteran’s current left knee disability is less likely as not incurred in or caused by the left knee injury that occurred in May 1972. The only rationale provided was that there were no further left knee complaints during service or noted on the separation examination. The Board finds this opinion to be inadequate. First, in finding that there were no further knee complaints following the May 1972 injury, the examiner failed to consider the August 1972 knee injury noted in the service treatment records. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Moreover, the examiner did not consider whether the Veteran had a preexisting left knee condition that was further aggravated by the left knee injuries during service, nor did the examiner provide an opinion using the correct “clear and unmistakable” standard. Once VA undertakes the effort to provide an examination or medical opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is required to obtain an addendum etiology opinion as to the nature and etiology of the Veteran’s left knee disability before the Board can render an informed decision on the claim. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Contact the Veteran and request that he submit or identify any outstanding private treatment records relevant to his claim for a temporary total rating under 38 C.F.R. § 4.29 based on hospitalization for hepatitis C. Specifically, he should be asked to submit, or provide authorization for VA to obtain, records pertaining to treatment and hospitalization for complications of hepatitis C, to include: (i) Salem Hospital in March 2016; (ii) Providence St. Vincent Medical Center in November 2020; and (iii) an unknown hospitalization in January 2021. After obtaining the necessary authorization from the Veteran, the RO must make reasonable efforts to obtain any identified records. 3. Forward the Veteran’s claims file to a VA audiologist to provide an addendum medical opinion addressing the nature and etiology of the Veteran’s bilateral hearing loss. A full audiological examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, including a copy of this REMAND, and that review should be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset during active service, within one year of separation, or is otherwise related to any in-service disease, event, or injury, to include conceded exposure to excessive military noise? The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is further reminded that the absence of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran’s lay statements as to onset and continuity of symptoms must be considered and weighed in making the determination as to whether a nexus exists between the Veteran’s hearing loss disability and his military service. The examiner must set forth a complete rationale for any conclusion reached, citing to medical literature and/or evidence in the Veteran’s claims file as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. 4. Forward the Veteran’s claims file to a VA examiner of appropriate expertise to provide an addendum medical opinion addressing the nature and etiology of the Veteran’s left knee disability. An in-person examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, including a copy of this REMAND, and that review should be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is there clear and unmistakable evidence (a very high burden of proof) that a left knee disability existed prior to the Veteran’s entry to active duty service? In providing the above, the examiner is requested to specifically address the Veteran’s May 1972 report of injury with hemarthrosis to his left knee two years prior. (b) If the examiner determines that a left knee disability clearly and unmistakably existed prior to entry into service, is there clear and unmistakable evidence that the preexisting left knee disability WAS NOT aggravated (permanently worsened in severity) during service? (c) If the examiner finds that a left knee disability did not clearly and unmistakably exist prior to service, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current left knee disability, diagnosed as patella femoral degenerative joint disease, was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein. In responding to the above, the examiner must consider and discuss the Veteran’s two in-service left knee injuries that occurred in May 1972 and August 1972, as well as the Veteran’s hearing testimony that he has continued to have pain in the left knee ever since service. The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The requested opinion(s) must adequately consider, and attempt to reconcile, the pertinent evidence of record, including the aforementioned service treatment records; the Veteran’s lay statements and hearing testimony; and the prior VA examination and medical opinion of record. The examiner is remined that the Veteran is considered competent to report the events that occurred during service, as well as the symptoms he experienced, including when those symptoms had their onset and how long they have persisted. The examiner must set forth a complete rationale for any conclusion reached, citing to medical literature and/or evidence in the Veteran’s claims file as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. (Continued on next page) 5. Then, readjudicate the issue on appeal with consideration of all the evidence associated with the claims file since the issuance of the February 2016 SOC. If any benefit sought on appeal remains denied, issue an SSOC and allow the appropriate time for response. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.