Citation Nr: 21030886 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-38 504 DATE: May 19, 2021 ORDER Service connection for migraine headaches, as secondary to the service-connected anxiety disorder, is granted. Service connection for a lumbar spine disorder is denied. Service connection for a right hip disorder is denied. Service connection for chronic hepatitis C is denied. Service connection for cirrhosis of the liver as due to hepatitis C is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with migraine headaches, which are worsened beyond their normal progression by the service-connected anxiety disorder. 2. The Veteran is currently diagnosed with degenerative arthritis in the lumbar spine, status post lumbar laminectomy (lumbar spine disorder); symptoms of the current lumbar spine disorder were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of service separation; the current lumbar spine disorder was not caused by, or otherwise etiologically related to an event, injury, or disease during active service. 3. The Veteran is currently diagnosed with avascular necrosis (a form of arthritis) of the right hip, status post total hip replacement (right hip disorder); symptoms of the current right hip disorder were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of service separation; the current right hip disorder was not caused by, or otherwise etiologically related to an event, injury, or disease during active service. 4. The Veteran is currently diagnosed with hepatitis C; the Veteran received an air gun inoculation during service; the Veteran used intravenous drugs and intranasal cocaine for several years after service; the diagnosed hepatitis C is not causally or etiologically related to service. 5. Service connection for cirrhosis of the liver as due to hepatitis C, as a matter of law, is denied. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for migraine headaches as secondary to the service-connected anxiety disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326(a). 5. The criteria for service connection for cirrhosis of the liver have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from October 1972 to April 1973. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently diagnosed with migraine headaches (as an organic disease of the nervous system) and forms of arthritis of the lumbar spine and right hip, which are "chronic diseases" under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system and arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service connection for migraine headaches The Veteran contends that migraine headaches had their onset during service after exposure to a gas chamber during basic training. Alternatively, the Veteran generally contends that migraine headaches are caused or worsened by the service-connected anxiety disorder. See October 2015 private examination report. At the outset, the Board finds that the Veteran is currently diagnosed with migraine headaches. See September 2020 VA examination report. After a review of all the evidence of record, lay and medical, the Board finds that the current migraine headaches are worsened beyond its normal progression by the service connected anxiety disorder. The Veteran underwent a VA examination for headache disorders in September 2020, the examination report for which contains the VA examiner's opinion that it is less likely than not that the current migraine disorder was caused or worsened beyond its normal progression by the service-connected anxiety disorder. Although the September 2020 VA examiner provided a negative secondary opinion, the VA examiner explained that anxiety disorder does not cause migraines but can worsen them. In an October 2020 VA addendum opinion, the VA examiner clarified that it is at least as likely as not that the service-connected anxiety disorder aggravated (i.e. worsened beyond its normal progression) the current migraine headache disorder. The VA examiner cited a medical article from the Mayo Clinic discussing how generalized anxiety disorder can lead to or worsen headache and migraine disorders. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for migraine headaches, as secondary to the service-connected anxiety disorder, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. As service connection is being granted on a secondary basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Service connection for a lumbar spine disorder The Veteran generally asserts that service connection for a lumbar spine disorder is warranted as back pain had its onset during service from frequent running, jumping, and carrying heavy packs during basic training. At the outset, the Board finds the Veteran is currently diagnosed with a lumbar spine disorder. A September 2020 VA examination report reflects the Veteran is currently diagnosed with degenerative arthritis of the lumbar spine. An April 2003 VA treatment record reflects the Veteran underwent a lumbar laminectomy in December 2002. After a review of all the evidence or record, lay and medical, the Board finds that the weight of the evidence shows no in-service back injury, disease, or even symptoms of back disorder during service, including no chronic symptoms of arthritis during service. Service treatment records do not show any complaints, symptoms, diagnosis, or treatment for back pain, including no chronic symptoms of arthritis in the back during service. A March 1973 service separation examination shows the Veteran's spine was found to be clinically normal. The lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the lumbar spine since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post service symptoms, or arthritis to 10 percent within one year of service. As discussed above, neither the service treatment records nor the March 1973 service separation examination indicated any history or findings or diagnosis for arthritis in the back, or any other problems with the back. The earliest evidence of arthritis in the back is not indicated until 1998 in a January 1998 private treatment record reflecting a history of degenerative joint disease in the lower back. This evidence reflects the presence of degenerative joint disease (arthritis) nearly 25 years after service separation and nearly 24 years outside of the applicable presumptive period. On the question of direct nexus between the current lumbar spine disorder and service, the Board finds that the preponderance of the lay and medical evidence is against a finding that the currently diagnosed lumbar spine disorder is causally related to service. In addition to the findings of no in-service injury, disease, ore even low back symptoms suggestive of onset of injury or disease during service, the weight of the evidence also shows that the symptoms of lumbar spine disorder had onset after active service. The Veteran was not treated for arthritis in the back until after service and was not diagnosed with arthritis in the back until January 1998. Additionally, the January 1998 private treatment record discussed above reflects the Veteran reported he initially hurt his back in 1991 after service while changing a license plate. On the question of direct nexus to service, the Veteran underwent a VA examination in September 2020, the examination report for which contains the VA examiner's opinion that it is less likely than not that the current lumbar spine disorder had its onset during service, or is otherwise etiologically related to service. The VA examiner explained that service treatment records do not reflect any complaints of back pain and the March 1973 service separation examination found the Veteran's spine to be clinically normal. Furthermore, the VA examiner accurately noted that post-service treatment records reflect the Veteran reported back pain years after service in 1991 while changing a license plate, and also show the Veteran reported back pain since a post-service fall at work in 1992. These factual assumptions are accurate and consistent with the Board's factual findings in this case after weighing the evidence. The record does not contain any other competent medical opinion to the contrary. For the foregoing reasons, the Board finds that the weight of the evidence is against the claim for service connection for a lumbar spine disorder; therefore, the claim must be denied. 3. Service connection for a right hip disorder The Veteran generally asserts that right hip pain had its onset during service from frequent running, jumping, and carrying heavy packs during basic training. Initially, the Board finds the Veteran is currently diagnosed with arthritis avascular necrosis of the right hip, status post total hip replacement. See January 1998 private treatment record; September 2020 VA examination report. After a review of all the evidence or record, lay and medical, the Board finds that the weight of the evidence shows no in-service right hip injury, disease, or even symptoms, and shows no chronic symptoms of hip arthritis in service. Service treatment records do not show any complaints, symptoms, injury, diagnosis, or treatment for right hip pain, including no chronic symptoms of arthritis in the right hip during service. A March 1973 service separation examination shows the Veteran's lower extremities and other musculoskeletal systems were found to be clinically normal. The lay and medical evidence weighs against a finding of continuous symptoms of arthritis in the right hip since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post service symptoms or arthritis to 10 percent within one year of service. As discussed above, neither the service treatment records that include the Veteran's complaints and symptoms nor the March 1973 service separation examination report show any history or findings of right hip injury or disease, or even show symptoms with the right hip. The earliest evidence of arthritis in the right hip is not indicated until 1998 in the January 1998 private treatment record discussed above, nearly 25 years after service separation and nearly 24 years outside of the applicable presumptive period. On the question of direct nexus between the current right hip disorder and service, the Board finds that the preponderance of the lay and medical evidence is against a finding that the currently diagnosed right hip disorder is causally related to service. The weight of the evidence shows that the right hip disorder had its onset after active service, that the Veteran was not treated for arthritis in the right hip until after service, and was not diagnosed with arthritis in the right hip until January 1998. A VA examination in September 2020 resulted in the VA examiner's opinion that it is less likely than not that the current right hip disorder had its onset during service, or is otherwise etiologically related to service. The rationale included that both the September 1972 service entrance examination report and the March 1973 service separation examination report are silent for any hip problems. Consistent with this factual assumption are the service treatment records, which do not reflect any complaints, symptoms, diagnosis, or treatment for right hip pain during service. The weight of the lay and medical evidence shows not in-service injury or disease of the hip, no chronic symptoms in service, no continuous symptoms since service, and no hip disorder for years after service, and includes a competent medical opinion that the current right hip disorder is not related to service. The Board finds that the weight of the evidence is against service connection for a right hip disorder; therefore, the claim must be denied. 4. Service connection for chronic hepatitis C The Veteran asserts that he contracted hepatitis C when he received vaccines during service. See August 2011 Statement in Support of Claim. To support a finding that the Veteran contracted hepatitis C in service, it must be shown that he was exposed to one of the medically recognized risk factors for contracting hepatitis C during that time. Risk factors include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades, and immunization with a jet air gun injector. It is clarified that, despite the lack of any scientific evidence to document transmission of hepatitis C with air gun injectors, it is biologically possible. Initially the Board finds that the Veteran is currently diagnosed with hepatitis C. A January 1997 private treatment record reflecting a diagnosis of hepatitis C following a liver biopsy is the earliest evidence of a confirmed hepatitis C diagnosis. A January 1999 VA treatment record indicates hepatitis C was diagnosed in 1995. After a review of the lay and medical evidence of record, the Board finds that a single risk factor of hepatitis C, namely in-service air gun immunization, was present in service. Service treatment records do not reflect any other in-service injury, disease, risk factors, or symptoms of hepatitis C present in service. Service treatment records do not show any history or reports of hepatitis C risk factors during service, or any other notations to suggest hepatitis C risk factors during service. Service treatment records do not indicate blood transfusions, hemodialysis, high-risk sexual activity, accidental exposure working as a health care worker, or percutaneous exposure. The Board further finds that the weight of the lay and medical evidence shows that the hepatitis C was not related to service, including to the in-service air gun inoculation. Though the Veteran is currently diagnosed with hepatitis C, the weight of the evidence demonstrates no link between the onset of the hepatitis C to service. Post-service private and VA treatment records show the Veteran has multiple post-service risk factors for hepatitis C such as intravenous drug use (including reports of sharing syringes with another friend) and intranasal cocaine use from 1967 to 1984. See, e.g., November 2009 private treatment record; November 2010 VA treatment record; July 2011 VA treatment record. The post service risk factors affirmatively weigh against a claim for service connection because they tend to show multiple non-service-related likely etiologies of hepatitis C versus the one in-service air gun inoculation risk factor. A September 2020 VA examiner's opinion was that, based on the Veteran's history and documented risk factors for hepatitis C, it is less likely than not that the Veteran contracted hepatitis C during service from receiving immunizations with an air jet injector. The VA examiner explained that the use of air jet injectors has not been shown to cause hepatitis C, even though they were discontinued for use during mass immunizations such as in the military due to increased knowledge of blood born viral illnesses such as HIV, hepatitis B, and hepatitis C; nonetheless, there have been no widespread outbreaks of these diseases that were caused by air jet injectors. On the other hand, the VA examiner noted the Veteran has other risk factors that are more likely to be the cause of his hepatitis C such as a history of intravenous drug use, hospitalization for substance abuse in 1984, and reportedly used intravenous drugs as recently as 1989, which are well-known risk factors to the transmission of hepatitis C. The VA examiner opined that the Veteran's hepatitis C is most likely attributable to (post-service) self-injection of illicit drugs. The Veteran is competent to report in-service risk factors (i.e., air gun immunizations), and is competent to report some of the post-service symptoms that were later diagnosed as hepatitis C. Under the facts of this case, which include post-service onset of hepatitis C risk factors, symptoms, and diagnosis, with a history of post-service drug abuse prior to the diagnosis, the Veteran is not competent to relate the hepatitis C to the in-service risk factors of an air-gun inoculation. Although the Veteran asserts that hepatitis C was related to the in-service air-gun inoculation, the Veteran is a lay person and, under the facts of this particular case that include multiple post service risk factors that include intravenous and intranasal drug abuse, does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the hepatitis C. The etiology of the Veteran's hepatitis C is a complex medical etiological question involving multiple risk factors, most of which occurred after service. Such disability is diagnosed primarily on clinical findings and physiological testing. Thus, while the Veteran is competent to report some hepatitis C symptoms he experienced, under the facts of this case, the Veteran is not competent to opine on whether there is a link between the current hepatitis C and the claimed in-service air-gun inoculations. For these reasons, the Board finds that the weight of the evidence demonstrates that the currently diagnosed hepatitis C is not related to service. As a preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Service connection for cirrhosis of the liver The Veteran contends that cirrhosis of the liver is the result of the currently diagnosed hepatitis C. This is the Veteran's sole contention. See August 2011 Statement in Support of Claim. Initially, the Board finds that the Veteran is currently diagnosed with hepatic cirrhosis of the liver. See October 2009 VA treatment record. (Continued on the next page) As discussed above, service connection for hepatitis C has been denied; therefore, as a matter of law, the Veteran is unable to receive service connection on a secondary basis (38 C.F.R. § 3.310) for cirrhosis of the liver because it is claimed as due to the non-service-connected hepatitis C. The evidence does not demonstrate, nor does the Veteran contend, that cirrhosis of the liver occurred during service. The undisputed evidence shows post-service onset of cirrhosis due to non-service-connected etiology. As a theory of secondary service connection is based on the law and not the facts of the case, service connection under this theory must be denied on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). For these reasons service connection for cirrhosis of the liver must be denied as a matter of law. 38 U.S.C. § 7104 (providing that the Board only decides actual case questions of law or fact). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.