Citation Nr: 21029460 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 10-43 357 DATE: May 13, 2021 ORDER Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected hepatitis C, is denied. Entitlement to an initial 10 percent rating, but not higher, for hepatitis C is granted. Entitlement to an effective date prior to August 19, 2008, for the grant of service connection for hepatitis C is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for prostate cancer, to include as secondary to hepatitis C, is remanded. Entitlement to service connection for bladder cancer, to include as secondary to hepatitis C, is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The competent and probative evidence of record fails to link the Veteran's spine condition to his active service or service-connected hepatitis C. 2. The Veteran's hepatitis C was manifested by symptoms that approximated intermittent fatigue, malaise, and anorexia and without dietary restrictions, continuous medication or incapacitating episodes. 3. The first evidence in the record indicating an intent to apply for service connection for hepatitis C was received on August 19, 2008, more than one year after the Veteran's separation from active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a spine condition, to include as secondary to service-connected hepatitis C, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an initial 10 percent rating for hepatitis C have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7354. 3. The criteria for assignment of an effective date prior to August 19, 2008, for the award of service connection for hepatitis C have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to November 1979. This matter comes before the Board of Veterans' Appeals on appeal from March 2009 (prostate and bladder cancers), August 2014 (increased rating and earlier effective date for service-connected hepatitis C), and November 2016 (right knee and spine) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned at a Board hearing in September 2011. This case has an extensive procedural history, described in the most recent remand in April 2019, and the Board will not reiterate it here except to note that there has been full compliance with prior remand instructions for the three claims fully decided herein. Service Connection Service connection will be granted for a 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. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a lumbar spine condition, to include as secondary to service-connected hepatitis C. The Veteran asserts that his lumbar spine condition, which manifested after his discharge from service, is directly attributable to his service. In the alternative, he has set forth the theory that his lumbar spine condition is secondary to his service-connected hepatitis C. A review of the Veteran's service treatment records shows that he was never diagnosed with or treated for any symptoms related to a lumbar spine condition. He was evaluated as having no abnormalities on his November 1979 discharge examination. As the Veteran has never contended that he incurred a lumbar spine condition during service, and as there is no evidence in the record to suggest that this is the case, the Board finds that service connection on a direct basis pursuant to 38 C.F.R. § 3.303(a) is not warranted. Post-service, records from a Dr. R.L. show that the Veteran sought treatment for low back pain with spams as early as September 1993. An April 1999 radiological examination showed no abnormalities of the lumbar spine and bilateral, partial lumbarization of the S1 segment. Subsequent outpatient records from Dr. R.L. show that the Veteran continued to receive treatment for low back pain, diagnosed variously as lumbago and/or lumbosacral strain. Separate private medical records from a Dr. R.S. show that the Veteran sought treatment from him for low back pain as early as July 2007. A MRI revealed no abnormalities other than very minimal posterior disk bulges at L3-4 through L5-S1. Subsequent outpatient records from Dr. R.S. show that the Veteran continued to receive treatment for low back pain, evaluated as chronic back pain with sciatica. The Veteran was afforded a VA examination to evaluate the nature and etiology of the lumbar back condition in June 2017. He reported experiencing low back pain for many years, and also acknowledged that he had a work-related injury to his low back in 2008. According to the Veteran, he was diagnosed with right sacroiliac dysfunction at that time and that he retired due to back pain in 2010. He endorsed experiencing tightness and soreness in the right side of his low back with chronic numbness in his left thigh extending into the left calf. After a review of the record, the examiner also noted that the Veteran was involved in a motor vehicle accident in July 1993 and furthermore injured himself on April 1993 when he fell six feet onto concrete stairs. An X-ray examination showed mild anterior wedging at T11 and T12 as well as lateral masses at L5 which formed pseudo arthroses. The diagnoses were right sacroiliac dysfunction and degenerative disc disease of the lumbar spine. With regard to the etiology of the lumbar spine condition, the June 2017 examiner opined that it was less likely than not that the condition was incurred in or caused by service. In support thereof, the examiner referred to a report of medical history the Veteran completed in 1988 before he began to work as a plumber, wherein he stated that he had no physical impairments. Furthermore, the examiner highlighted the fact that the Veteran was diagnosed with right sacroiliac dysfunction in 2008 only after a work-related injury that occurred in May 2008. As for the purported connection between the lumbar spine condition and service-connected hepatitis C, the Board remanded the issue in April 2019, as noted above, in order to obtain an opinion regarding whether the Veteran's spine condition could be related to interferon, a treatment the Veteran received for his hepatitis C. In December 2019, an examiner stated that although one of the side effects of interferon is joint pain, this joint pain is a transient condition that resolves after the medication has been metabolized, and there is no evidence that interferon causes mechanical dysfunction of the sacroiliac joints or degeneration of the lumbar intervertebral discs. Regarding aggravation, the examiner stated that there is no evidence that hepatitis C or the treatment of hepatitis C with interferon causes or aggravates biomechanical conditions of the lumbar spine or the sacroiliac joints because hepatitis C is an infection in the liver and in the Veteran's case, it was treated in 1993, almost 15 years before the Veteran began having biomechanical spine symptoms. As such, a nexus based on causation or aggravation beyond natural progression was not found. See 38 C.F.R. § 3.310. The Board finds that the Veteran's lay statements are outweighed by the persuasive rationale provided in the June 2017 and December 2019 VA opinions. To the extent that the Veteran has been shown to be competent to opine on symptoms and matters of personal observation, respectively, the Board finds that the opinion of the VA examiners are of greater probative weight than the lay statements of record, and the Veteran is not shown to have the training or credentials to provide a competent medical opinion on the etiology of his spine condition, as that requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). The June 2017 and December 2019 examiners have training and credentials upon which they relied to reach the above determinations, and the opinion reflects a comprehensive, accurate, and reasoned review of the entire evidentiary record. Thus, the examiners' opinion outweighs the lay statements of record. Ultimately, the preponderance of evidence is against a finding that the Veteran's spine condition is related to his active service on a direct or secondary service connection basis. The Board finds that the VA opinions are the most probative evidence with respect to the claim, given the examiners' training and credentials and the claims file review incorporated. As such, the benefit-of-the-doubt doctrine does not apply in this case, and service connection for a spine condition, to include as secondary to service-connected hepatitis C, must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable rating for hepatitis C. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Because the Veteran is challenging the initially assigned disability rating, the claim has been in continuous appellate status since the original assignments of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board may, however, grant different levels of compensation effective from different dates based on the evidence, throughout the period since service connection was awarded. See Hart v. Mansfield, 121 Vet. App. 505 (2007). The Veteran seeks an initial compensable rating for hepatitis C, which is currently rated under 38 C.F.R. § 4.114, Diagnostic Code 7354. Under this diagnostic code, a noncompensable evaluation is warranted where the hepatitis C infection is nonsymptomatic. A 10 percent rating is warranted where the following signs and symptoms due to hepatitis C infection are manifested: "[i]ntermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks during the past 12-month period." A 20 percent rating is warranted for "[d]aily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period." A 40 percent rating is warranted for "[d]aily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period." A 60 percent rating is warranted for "[d]aily fatigue, malaise and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks, during the past 12-month period, but not occurring constantly." A 100 percent rating requires "[n]ear-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)." In regard to the above, the term "incapacitating episode" means "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." Id. at note 2. In this case, the record shows a private treatment record dated in June 1992 that reflects an assessment for hepatitis C. A private treatment note dated in May 1995 further shows that the Veteran was positively last tested in August 1994 for hepatitis C. An assessment of chronic hepatitis C was provided. In June 2010, the Veteran was provided a VA examination. The Veteran reported fatigue, weakness, depression and anxiety. No vomiting, hematemesis, or melena were reported. Weight loss and weakness were reported since service. The VA examiner noted that the Veteran's hepatitis C was not currently active. No effects of the condition were found on the Veteran's occupational and daily activities. The Veteran was afforded another VA examination in December 2015. The VA examiner found that the Veteran did not have signs or symptoms attributable to chronic or infectious liver disease. No incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain) due to the liver conditions during the past 12 months were noted. The VA examiner stated that the Veteran's liver condition did not impact his ability to function in an occupational environment. In November 2016, a third VA examination indicated that the Veteran did not have signs or symptoms attributable to hepatitis C. The examiner noted that the hepatitis C RNA was not detected in his lab results and the disease was inactive. The VA examiner also stated that the Veteran's condition did not impact his ability to work. However, the Veteran continues to argue that he is entitled to an initial compensable rating as he continued to experience periods of fatigue and malaise due to his hepatitis C and since leaving service. Vocational assessment consultation reports from 2018 note the Veteran reported having a history of limited functional ability since being diagnosed with and treated for hepatitis C due to periods of malaise, decreased energy, and fatigue, which were noted to last up to a week and occur a few times a year. The Veteran reported these symptoms have caused him to miss work and perform below expectations at times. Based on the foregoing and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's symptoms throughout the appeal period more nearly approximated the criteria for a 10 percent evaluation. The evidence is at least in equipoise as to whether the Veteran continued to experience intermittent periods of fatigue, malaise and weight loss due to his hepatitis C throughout the appeal period. However, the criteria for a rating higher than 10 percent have not been met at any point during the appeal period. The evidence does not show that hepatitis C resulted in daily fatigue, malaise, and weight loss requiring dietary restriction or continuous medication or incapacitating episodes requiring bedrest for at least two weeks during a 12-month period. As such, an initial 10 percent rating, but not higher, for hepatitis C is granted. 3. Entitlement to an effective date prior to August 19, 2008, for the grant of a service connection for hepatitis C. Generally, the effective date for service connection is the date of receipt of the claim or date entitlement arose, whichever is later, if receipt is more than one year after service. 38 C.F.R. § 3.400(o)(1). For VA compensation purposes, a "claim" is defined as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Although the regulations have since been amended to provide for standardized claims forms, this was after the time period in question for this case. An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). In addition, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability in treatment records. See Brannon v. West, 12 Vet. App. 32, 35 (1998). In this case, the Board does not dispute that entitlement to service connection for hepatitis C arose much earlier than August 19, 2008. The remaining question becomes on what date he filed a claim for service connection. On this question, it must be found that his original claim was filed on August 19, 2008, the current effective date. A review of the claims file does not show evidence of the Veteran's intent to file a claim of service connection for hepatitis C earlier than August 19, 2008. As his claim of service connection for hepatitis C was received more than one year after his separation from military service, the effective date of the award cannot be earlier than August 19, 2008, even though, as the Veteran contends, entitlement arose prior to that date. The law requires that the effective date be the date of claim or the date entitlement arose, whichever is later. Because the later of these two dates in this case is the date he filed his claim, there is no legal basis to assign an earlier effective date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As such, the appeal for an earlier effective date for the award of service connection for hepatitis C must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded. In June 2017, a VA opinion was obtained regarding whether the Veteran's right knee disorder is related to this time in service. The examiner noted the multiple in-service complaints regarding his right knee, including reports of knee pain lasting two weeks. The examiner also noted the Veteran was a plumber after service and that he reported due to his years as a plumber his right knee was "pretty beat up." The examiner concluded that that the Veteran's right knee symptoms were at least as likely as not due to the overuse and physical labor as a plumber, and his right knee condition was less likely than not due his military service. While the VA examiner listed some of the Veteran's in-service reports of knee-related symptoms, the VA examiner did not explain why the Veteran's post-service occupation was more likely the cause of his right knee disorder than his in-service injury (falling off a ladder) and the numerous complaints in service regarding knee-related symptoms. A single conclusory sentence without an analysis is not adequate. As any opinion, to be adequate, "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, a remand for a new VA opinion (and examination, if found necessary) is warranted. 2. Entitlement to service connection for prostate cancer, claimed as secondary to service-connected hepatitis C, is remanded. 3. Entitlement to service connection for bladder cancer, claimed as secondary to service-connected hepatitis C, is remanded. The Veteran submitted argument in which he contends his prostate and bladder cancers are related on a secondary basis to his service-connected hepatitis C. Furthermore, the Veteran argues that the "medical evidence of record, considered with prevailing medical literature, undoubtedly provides a nexus" between these cancers and hepatitis C. Therefore, the Board finds that an addendum VA opinion is necessary in order to obtain an opinion regarding whether the Veteran's prostate and bladder cancer are related on a secondary basis to his service-connected hepatitis C. See DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). 4. Entitlement to a TDIU is remanded. In this case, the Veteran is service connected for chronic obstructive pulmonary disease (COPD), which is rated at 30 percent since August 19, 2008; residuals of a nasal fracture, which is rated at 10 percent since August 19, 2008; and hepatitis C, which by virtue of this decision will be rated at 10 percent since August 19, 2008. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the schedular criteria for consideration for TDIU under 38 C.F.R. § 4.16(a). However, TDIU can be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b) if it is determined that the Veteran is unemployable by reason of service-connected disability, but fails to meet the percentage standards set forth above. Nonetheless, the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA's Director, Compensation Service, for initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the record shows the Veteran last worked full time in 2011 as a plumber in the Department of the Navy. The Veteran asserts that he has not engaged in substantial gainful activity since then due to his service-connected disabilities. An examination from April 2019 regarding his respiratory condition/COPD and asthma notes that his condition would have an impact on his ability to work as it causes wheezing and severe shortness of breath requiring the use of a rescue inhaler daily, especially upon exposure to allergens or when doing strenuous work such as walking up stairs. Other symptoms noted in the respiratory examination report include chest tightness, cough, and wheezing at night or when laying down, and shortness of breath even with minimal exertion, such as walking. The record also indicates the Veteran reports difficulty breathing due to his service-connected nasal fracture residuals and resulting congestion and deviated septum. Based upon the above evidence, the Board concludes that the facts of this case meet the criteria for referral of the Veteran's claim to the Director, Compensation Service, for extraschedular consideration of entitlement to TDIU. The matters are REMANDED for the following action: 1. Obtain a new opinion regarding the etiology of the Veteran's right knee disorder. The need for an examination is left to the discretion of the medical professional asked to provide the opinion. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right knee disorder is related to an in-service injury, event, or disease. The Veteran must consider and address the numerous in-service reports of knee-related symptoms. The examiner must provide a rationale for all opinions expressed, citing to the medical and lay evidence. If the examiner attributes the Veteran's right knee disorder to factors other than the in-service injury and reports (such as his post-military occupation as a plumber), the examiner must explain why the Veteran's right knee disorder would be more likely due to these post-service factors than in-service injury and complaints. 2. Send the claims file to a VA medical professional with the appropriate expertise as relates to the Veteran's prostate and bladder cancer service connection claims. A new examination is not required unless the examiner feels one is necessary. (a) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer was caused by his service-connected hepatitis C. (b) The examiner should opine as to whether it is at least as likely as not that the Veteran's prostate cancer is/was aggravated by his service-connected hepatitis C. (c) The examiner should opine as to whether it is at least as likely as not that the Veteran's bladder cancer is/was caused by his service-connected hepatitis C. (d) The examiner should opine as to whether it is at least as likely as not that the Veteran's bladder cancer is/was aggravated by his service-connected hepatitis C. The examiner must address both causation and aggravation for the opinions to be deemed adequate. The examiner should be aware that Ward v. Wilkie, 31 Vet. App. 233 (2019) held that a "permanent worsening" of a nonservice-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). A rationale is required for all opinions. 3. Refer the claim to the Director, Compensation Service, for consideration of whether a TDIU is warranted on an extraschedular basis. The ensuing decision must be added to the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ariasaif, 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.