Citation Nr: 21022525 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 10-10 070 DATE: April 16, 2021 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee is denied. Entitlement to an effective date of January 9, 2008 for the assignment of a separate 10 percent disability rating for right knee instability, but not more, is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that hepatitis C began during active service or is otherwise related to an in-service injury or disease. 2. During the pendency of the appeal, the most probative evidence does not reflect that the Veteran’s right knee strain with degenerative arthritis was manifested by flexion limited to 30 degrees or less or extension limited to 15 degrees or less, to include after repetitive motion testing, during a flare-up of symptoms, in weight-bearing and non-weight-bearing positions, and on active and/or passive motion. 3. Resolving reasonable doubt in favor of the Veteran, the evidence of record is at least is equipoise as to whether the Veteran has experienced slight instability of the right knee since January 9, 2008. CONCLUSIONS OF LAW 1. The criteria for entitlement to 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 entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5003-5260. 3. The criteria for an effective date prior to September 17, 2019 for the grant of a separate 10 percent rating, but not more, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1976 until August 1976 and September 1977 until May 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2008 and June 2020 rating decisions of a VA Regional Office (RO). In October 2015, the Veteran testified before a Veterans Law Judge (VLJ) at a hearing before the Board of Veterans’ Appeals (Board). In a February 2020 notification letter, the Veteran was informed that the VLJ who conducted his hearing was no longer employed by the Board. He was advised that he had the right to another hearing, but this hearing was not mandatory. In March 2021 correspondence, the Veteran indicated that he did not want another hearing and preferred that the Board consider his case with the evidence of record. In an October 2017 decision the Board denied the Veteran's claims for entitlement to service connection for hepatitis C and an initial rating in excess of 10 percent for degenerative arthritis of the right knee. In response to the October 2017 decision denying the claims, the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In July 2018, the Court granted a Joint Motion Remand (JMR) filed by the parties, which requested a remand of the October 2017 decision addressing the claims. In October 2018 and September 2020 decisions, the Board remanded the Veteran’s claims for additional development. The Board finds that the RO substantially complied with the Board’s remand directives, and the Board may now proceed with adjudication. 1. Entitlement to service connection for hepatitis C The Veteran contends that service connection should be established for hepatitis C, which he believes resulted from activities that occurred while on active duty. He specifically points out that during service he was given vaccinations with an air gun delivery system that he asserts was unsanitary. See February 2008 statement in support of claim. He also asserted that his hepatitis C might have been contracted from his in-service intravenous drug abuse and high sexual activity. See September 2008 Notice of Disagreement (NOD) statement. He has also stated that he shared razor blades with his fellow servicemen. See February 2010 Form 9 statement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, the Veteran’s service treatment records (STRs) are negative for complaints, treatment, or diagnosis of hepatitis C during active service. The Veteran’s VA and private treatment records are negative for complaints or treatment of hepatitis C during the 12-month period immediately following active service. No medical opinion supports the Veteran’s claim. The Veteran reported being forcibly shaved by another service member with a razor blade that was not owned by the Veteran and receiving inoculations by air gun. Lastly, the examiner noted that the Veteran heavy drug and sexual history. The examiner stated that it would be impossible to state which risk factor caused the Veteran to contract hepatitis C. During the Veteran’s July 2008 VA examination for digestive conditions, the VA examiner noted that he was diagnosed with hepatitis C in November 2004. During the Veteran’s October 2015 Board hearing, the Veteran testified that he was not certain when he contracted hepatitis C. He testified to receiving air gun injections, using intravenous drugs, having unprotected sex, and being forcibly shaved during active service. During the Veteran’s February 2016 VA examination for hepatitis and other conditions, the VA examiner noted that the Veteran had a liver function test performed in July 1978, during service, which reflected normal findings. In an accompanying etiology opinion, the VA examiner found the condition less likely than not to have arisen during or as a result of active service. The examiner noted the lack of in-service evidence of hepatitis C and the lack of treatment for hepatitis C until October 2004. In February 2017, a different VA examiner provided a VA addendum medical opinion. The examiner found that any etiology opinion he provided would be mere speculation, given the facts of the Veteran’s case. In an August 2019 VA addendum medical opinion, the VA examiner concluded that the claimed condition was less likely than not related to service. The examiner noted the lack of in-service evidence of hepatitis C complaints, treatment, or diagnosis. Additionally, the Veteran was diagnosed with hepatitis C in 2004, many years after service, and after a long history of engaging in high-risk activities post-service. Finally, in a November 2020 VA examination for hepatitis and other conditions, the VA examiner concluded the claimed condition was less likely than not related to the Veteran’s active service, including the use of dirty razors. The examiner found the condition was more likely caused by years of high-risk behavior, such as intravenous drug use and unprotected sex. The examiner also noted that the Veteran was diagnosed in 2004, many years after leaving active service. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Board finds the Veteran credible, he has also asserted many different theories of causation during the appeal and lacks medical training. His lay contentions are thus of markedly lower probative value than, and are outweighed by, the various VA examination opinions and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran’s claim for service connection. While the Veteran has credibly testified to experiencing several risk factors during active service, his STRs are negative for any evidence of in-service hepatitis C. Additionally, the Veteran was not diagnosed with hepatitis C until 2004, approximately 25 years after active service. While the February 2017 VA examination report found that it would be mere speculation to opine as to the etiology of the Veteran’s condition, the other VA examination reports reflect the Veteran’s condition being less likely than not related to his active service. Finally, no medical opinion supports the Veteran’s claim. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Accordingly, the claim for service connection for hepatitis C is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 2. and 3. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the right knee, and entitlement to a 10 percent rating for right knee instability prior to September 17, 2019 The Veteran asserts that his right knee disability is more severe than is reflected by his current evaluation. The Veteran’s right knee disability is rated as 10 percent disabling under DCs 5003-5260 throughout the period on appeal. He is in receipt of a separate 10 percent disability rating for right knee instability (DCs 5003-5257) effective September 17, 2019. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Under DC 5260, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a maximum 50 percent rating. 38 C.F.R. § 4.71a. Normal knee joint motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Where a Veteran has both compensable limitation of flexion and compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOGCPREC 9-2004 (2004); 69 Fed. Reg. 59990 (2004). Effective February 7, 2021, VA amended the regulations pertaining to the evaluation of disabilities of the musculoskeletal system, including those of the knee. 85 Fed. Reg. 76460 (Nov. 30, 2020). However, Diagnostic Codes 5260 and 5261 remain unchanged. The recent amendments did involve Diagnostic Code 5257. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Under the new criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes 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 with either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device 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 or bracing for ambulation. Lastly, regarding patellar instability, a 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. 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 warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note (1). 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). Id., Note (2). Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. In this case, during the Veteran’s January 2008 VA examination for joint conditions, the examiner found no evidence of painful motion in the right knee and flexion was from zero to 140 degrees. Mild degenerative change was found in the tibiofemoral and patellofemoral compartments of the right knee. In a February 2008 statement in support of his claim, the Veteran asserted that his condition was more severe than was reflected during his examination and that it had worsened over time. He also asserted that his right knee occasionally experienced swelling that limited his movement. In a September 2008 Notice of Disagreement (NOD) statement, the Veteran asserted that he wore a knee brace at all times to alleviate pain and prevent his knee from buckling. During the October 2015 Board hearing, the Veteran testified that he experienced constant pain in his right knee, including during movement. He stated that his right knee disability affected his ability to exercise or to perform physical labor. He could not stand for extended periods, and the knee became swollen periodically. He also stated that his knee had worsened over time. During the Veteran’s February 2016 VA examination for knee and lower leg conditions, the VA examiner indicated that the Veteran was positive for degenerative arthritis of the right knee since 1979 and chondromalacia of the right knee since 2010. Initial range of motion (ROM) testing revealed flexion and extension from zero to 100 degrees. There was painful motion during flexion and extension that limited the Veteran’s full ROM. There was evidence of pain during weight bearing, tenderness during palpation of the joint, and evidence of crepitus. Repetitive use testing was performed, but it did not reveal additional functional loss. Joint stability testing was performed, and there was no evidence of instability. The Veteran reported flare-ups of his condition. However, the VA examiner stated that he could not opine on the degree to which they would further limit the Veteran’s movement, as such a conclusion would be purely speculative. During the Veteran’s February 2017 VA examination for knee and lower leg conditions, the VA examiner indicated that the Veteran was positive for degenerative arthritis of the right knee since 1979 and chondromalacia of the right knee since 2010. The Veteran reported experiencing flare-ups of his condition that were brought on by standing or walking all day. During flare-ups, he experienced increased pain and decreased ROM. Initial ROM testing revealed flexion and extension from zero to 100 degrees. There was painful motion during flexion and extension that limited the Veteran’s full ROM. There was evidence of pain during weight bearing, tenderness during palpation of the joint, and evidence of crepitus. Repetitive use testing was performed, but it did not reveal additional functional loss. Joint stability testing was performed, and there was no evidence of instability. The Veteran made regular use of a brace for his knee. In a July 2017 VA retrospective medical opinion, the VA examiner stated that during the January 2008 VA examination for the right knee condition, bilateral ROM for the knees was from zero to 140 degrees, without pain or additional loss of motion after repetitive use. There was documentation of pain during weight-bearing. During the Veteran’s September 2019 VA examination for knee conditions, the VA examiner diagnosed the Veteran with right knee strain. The Veteran did not report flare-ups of his condition. Initial range of motion (ROM) testing revealed flexion and extension from zero to 140 degrees. There was painful motion during flexion. Swelling was listed as an additional symptom affecting the condition. Repetitive use testing was performed, but it did not reveal additional functional loss. Joint instability was noted, with medial instability noted during joint stability testing. The Veteran did not report using any devices to assist with locomotion. During the Veteran’s June 2020 VA retrospective medical opinion, the VA examiner stated that they had reviewed the January 2008 VA examination and provided the following estimated ROM scores: initial ROM was from zero to 140 degree for flexion and extension. Repetitive use ROM testing revealed flexion and extension from zero to 135 degrees. Flare-ups resulted in ROM from zero to 130 degrees for flexion and extension. During the Veteran’s November 2020 VA examination for knee conditions, the VA examiner indicated that the Veteran’s condition had stayed the same since it was diagnosed in 1979. The Veteran reported flare-ups of his condition, involving swelling and increased pain. Initial ROM testing revealed flexion and extension from zero to 110 degrees. There was painful motion during flexion and extension. Evidence of crepitus was noted. Swelling was listed as an additional symptom affecting the condition. Repetitive use testing was performed, but it did not reveal additional functional loss. ROM during flare-ups and passive non-weight bearing motion was also estimated as zero to 110 degrees for flexion and extension. Joint stability testing was performed; however, no instability was found. The Veteran did not report using any devices to assist with locomotion. During the Veteran’s November 2020 VA retrospective medical opinion, the VA examiner reported the following findings. The severity of the right knee in 2008 was noted as being severe from the Veteran’s standpoint, but the examination showed no joint findings with x-ray results showing mild degenerative changes. ROM was 110 to zero degrees in flexion, and zero to 110 in extension. Pain was not objective on repetitive motion testing. In 2017, ROM testing led to findings of functional loss with zero to 100 in flexion and 100 to zero in flexion. Pain with weight bearing appeared evident. Pain was noted to be intermittent with associated stiffness with prolonged standing and walking noted by Veteran. Pain appeared during palpation during flexion and extension at 115 to 110 degrees of motion. The Veteran’s flare-ups appeared to be mild, but could be more pronounced when ambulating for extended periods of time. While the Veteran is competent to observe his right knee disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his knee disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the preponderance of the evidence is against the Veteran’s claim for an increased rating. During the period on appeal, the Veteran’s ROM for his right knee has been measured as being from zero to 100 degrees at worst, including during flare-ups. Right knee flexion has never been limited to 30 degrees, and extension has never been limited to 5 degrees or worse. No evidence of record indicates that the Veteran’s right knee disability has manifested in symptoms or limitation of motion that meet the criteria for an increased or separate disability rating. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran’s claim. Accordingly, the claim for an increased rating for right knee strain is denied. The Board will next turn to the separate rating for instability. First, during the Veteran’s January 2008 VA examination for joint conditions, the Veteran reported that his knee gave out periodically. The Veteran also reported this in his September 2008 NOD statement and stated that he had to wear a brace to keep his knee from buckling. The January 2008 VA examination is the earliest evidence of record asserting that the Veteran’s knee was unstable or in danger of giving out. For this reason, the Board will grant an earlier effective date of January 9, 2008, the date of the VA examination, for the separate 10 percent rating for instability. That said, the Board finds that the assigned 10 percent evaluation is appropriate for the entire period on appeal. The Veteran’s instability-related symptoms were consistently shown to be slight or alleviated by wearing a brace. During the September 2019 VA examination for knee conditions, the Veteran’s medial instability was 1+ (zero to 5 millimeters). No evidence suggests that the disability is more aptly described as moderate or severe in degree. The Veteran’s right knee instability also does not warrant a higher disability rating under the new regulations. There is no evidence of either: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. There is also no evidence of the Veteran using a knee brace during his December 2020 VA examination or any evidence received since the time of the examination. Accordingly, the Veteran does not meet the criteria for a 20 percent rating under the amended DC 5257. In short, the Board finds that an earlier effective date of January 9, 2008 is warranted for the 10 percent rating, but not more, for instability of the left knee. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, other than those noted below. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. The Board finds the issue of entitlement to TDIU has been raised by the record. In Rice, the Court held that a TDIU claim is part of an increased-rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran meets the criteria for schedular consideration for TDIU from April 2017, and an October 2020 VA treatment record indicates that the Veteran was not working at the time; however the Board does not have adequate information about the Veteran’s employment history to adjudicate the claim. The increased rating claim has been adjudicated as indicated above, but the derivative claim of TDIU requires further development. Accordingly, the claim for TDIU is remanded. The matters are REMANDED for the following actions: 1. Send a letter to the Veteran that informs him of the evidentiary requirements for establishing entitlement to a TDIU and his and VA’s respective duties in obtaining evidence. Include with the letter a copy of VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) and instruct the Veteran to complete the form and return it to the RO. 2. Then, after undertaking any additional development deemed necessary, adjudicate the claim in a Supplemental Statement of the Case, if it cannot be granted in full. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.