Citation Nr: 21031222 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-22 993 DATE: May 20, 2021 ORDER Entitlement to service connection for a back disability is granted Entitlement to service connection for a liver disability, to include hepatitis C, is denied. Entitlement to service connection for diabetes mellitus, type II is denied. Entitlement to service connection for pancreatitis is denied. FINDINGS OF FACT 1. The Veteran's back disability is etiologically related to an in-service injury. 2. A liver disability, including hepatitis C, is not etiologically related to the Veteran's active service. 3. Diabetes mellitus, type II, is not etiologically related to service, was not present to a compensable degree within a year of the Veteran's separation from such service, and is not secondary to a service-connected disability. 4. Pancreatitis is not etiologically related to service or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3.310 (2020). 4. The criteria for service connection for pancreatitis are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1974 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2010, July 2011, and July 2012 rating decisions of Department of Veterans Affairs (VA) Regional Offices. In August 2017, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. In February 2018, this matter was remanded by the Board for further development. The Veteran died in May 2019 during the pendency of the instant claims. The appellant is the Veteran's surviving spouse and has been recognized as a valid substitute claimant for the instant appeal. This matter has now been returned to the Board for further appellate action. Service Connection Back Disability Prior to his death, the Veteran asserted that his back disability is related to his active duty service. More specifically, the Veteran previously reported that the onset of his lower back symptoms began in 1974. The evidence establishes that the Veteran had a disability of degenerative arthritis of the spine, thereby establishing the first element of service connection. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see April 2014, VA Examination Report. The Veteran cited to several specific incidents in service concerning injury to his back. See August 2017, Hearing Transcript. The first of which was an incident regarding moving a wall locker. The Veteran reported that he felt something happen to his back while trying to move the locker and experienced pain ever since that event. Indeed, the Veteran's service treatment records (STRs) reflect a detailed complaint of lower back pain after the Veteran was moving furniture by himself. The treatment note also references that the Veteran had a history of lower back pain, which is reflected in more historical STRs beginning as early as September 1974, including the Veteran's injury from a car accident. Based upon the Veteran's personal accounts of injuries during service and the documented complaints of such injuries and experienced pain, the Board finds that the Veteran injured his lower back as reported and documented during his active service. The claims file includes a private treatment record addressing the Veteran's lower back pain. Dated October 2011, the record is in the form of a letter explaining that the opinions rendered therein were based upon a physical examination of the Veteran and a review of the Veteran's records. The physician includes an accurate recitation of the Veteran's active service history and a brief discussion of the back injuries sustained therein. A positive nexus opinion is included, stating that the physician finds that it is at least as likely as not the Veteran's lower back pain and discomfort is a result of the in-service injuries. Although the opinion provided fails to include a specific diagnosis of a back disability and references only back pain and discomfort, it is nevertheless probative. The case of Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018) established that, in some cases, pain alone can be considered a disability. The record reflects that the Veteran also underwent a VA examination in April 2014. The examiner confirmed a diagnosis of degenerative disc disease (DDD) of the lumbar spine, acknowledged the numerous accounts of reported back pain during active service, but provided a negative nexus opinion, explaining that the incidents in service were mild and self-limiting incidents which were not related to the later diagnosed disability of DDD. Due to the typographical error in that opinion, citing the Veteran's year of separation from service as being 1984 as opposed to 1986, an addendum opinion was obtained in January 2021 for clarification. The examiner again provided a negative nexus opinion, citing the same rationale, but correcting the date of separation. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Liver Disability, Including Hepatitis C Infection. The Veteran claimed a disability of hepatitis C as being related to his active military service. During his August 2017 hearing before the Board, the Veteran testified that approximately two years after his separation from service, he was treated at a VA medical facility in St. Albans, New York for drugs and alcohol. The Veteran explained that during this treatment he was told that he had a previous diagnosis of hepatitis C. He believed that this diagnosis was first made while he was stationed in Germany during active service and received treatment for a bug bite. Alternatively, the Veteran contended that he contracted hepatitis C during a cyst removal procedure while on active duty. STRs of record are silent for treatment or a diagnosis of hepatitis C while the Veteran was in active service. Several attempts were made to obtain the VAMC records referenced by the Veteran, from St. Albans as well as from the Brooklyn VAMC. The record reflects that a thorough search was undertaken, including for archived paper files, however, the records were unavailable. Records were obtained for the Veteran from St. Albans which are dated from 1999 to 2004. The claims file does contain a single treatment note from July 1993, which reports that the Veteran was diagnosed with alcohol dependence and schizophrenia, with his long-term treatment being transferred from the Brooklyn VAMC to St. Albans. The Veteran underwent a VA examination in November 1995 for other claimed disabilities, which included a general physical examination and review of the Veteran's medical history. The treatment record did not include any description of treatment or diagnosis for hepatitis C. An October 1999 treatment note from St. Albans shows that the Veteran received treatment for high blood pressure which included an order for all blood work testing to be completed. Follow-up records from the same facility do not include reference, diagnosis, or treatment for hepatitis C until 2001. In April 2014, the Veteran underwent a VA examination for hepatitis C. The examiner noted that the Veteran's medical history reflected treatment for intravenous drug use or intranasal cocaine use with the first diagnosis of hepatitis C in 2001. In providing a negative nexus opinion, the examiner explained that the claimed cyst removal procedure was completed under general anesthesia which presents a very unlikely risk for contracting hepatitis C. In addition, the examiner discussed that hepatitis C is not medically known to be transmitted through insect bites or from allergic reactions thereto. Considering these medical determinations along with the Veteran's medical history and completed risk factors for hepatitis questionnaire, the examiner opined that it is less likely than not that the Veteran's diagnosed hepatitis C is related to his active military service. The Board finds that the April 2014 VA examination and opinion is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, considered general medical knowledge, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While laypersons are competent to report the presence of observable symptoms, the Veteran is not competent to provide an opinion regarding the etiology of hepatitis C or to relate hepatitis C to service. A medical opinion of that nature requires medical testing and medical expertise that is outside the common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an opinion. Further, there is no medical evidence of record to support the Veteran's statements that he received a diagnosis of hepatitis C, or even a diagnosis of non-A, non-B hepatitis, while in active service. In sum, the STRs are silent for a diagnosis of hepatitis C and provide no indication that the Veteran contracted the disease during active service. The April 2014 VA examiner has competently opined that the Veteran's diagnosis of hepatitis C was not etiologically related to active service. The medical opinion and records are the most probative evidence in this regard and the Veteran has not submitted any contrary competent evidence. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for hepatitis C is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Diabetes Mellitus, Type II and Pancreatitis The Veteran claimed service connection for diabetes mellitus type II and pancreatitis, both as secondary to hepatitis C. The Veteran did not assert direct service connection, but rather, specifically claimed these issues as being resulting from his diagnosed hepatitis C disability. Turning to the evidence of record, it is recognized that the Veteran has been diagnosed with both diabetes mellitus, type II (DM) and pancreatitis. See VA Treatment Record, October 2002. The Veteran's STRs do not reflect any diagnoses, complaints of, or treatment for DM or pancreatitis, and provide no indication that the Veteran experienced any symptoms that could be associated with the later diagnoses of either disability while he was in active service. Furthermore, the Veteran was not diagnosed with DM within one year of his separation from active service. Therefore, presumptive service connection is not warranted with regard to the Veteran's claim for entitlement to service connection for DM and direct service connection is not warranted for either claim as there is no indication of any in-service injury related to either disability, or otherwise even asserted. The evidence does not support that there was an in-service incident which resulted in the Veteran's later diagnosed DM or pancreatitis to warrant the necessity of an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to secondary service connection, the determinative issue is whether a service-connected disability caused or aggravated the claimed disorder. Here, the Veteran argued that the disabilities of DM and pancreatitis are secondary to his diagnosed hepatitis C. As the underlying disorder is not service-connected, the Veteran's claim for secondary service connection on this basis is without legal merit and must be denied due to the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Overall, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection of DM and pancreatitis and are not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.