Citation Nr: 21031563 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-57 938 DATE: May 24, 2021 ORDER Entitlement to service connection for Hepatitis C is denied. Entitlement to service connection for cirrhosis of the liver is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's Hepatitis C began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's cirrhosis of the liver is caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for Hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria to establish service connection for cirrhosis of the liver have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to December 1966. He appeals May 2015 and November 2015 and rating decisions by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in January 2020. A transcript is of record. In March 2020, the Board remanded the Veteran's claims to the AOJ for further development. The claims are back before the Board for further appellate proceedings. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Hepatitis C The Veteran contends his Hepatitis C is a result of inoculation injections he received during basic training. See Board Hearing Tr. at 3. The Veteran has Hepatitis C, and he received inoculations during his service. See October 2020 VA examination report; see also service treatment immunization record at 38. Thus, as the first two Shedden elements are met, the question remaining is whether the current disability is related to the Veteran's service. On this question, there is a probative medical opinion against the claim. In October 2020, a VA examiner opined that the Veteran's Hepatitis C was less likely than not incurred in or caused by the inoculations he received during his service. See October 2020 VA opinion. In support of the opinion, the VA examiner cited to medical literature that illustrates that inoculation injections do not cause the development of Hepatitis C. Id. Furthermore, the VA examiner noted that following exposure to Hepatitis C, the window period to show antibodies is typically 4 to 10 weeks and up to 9 months in rare cases. Id. The VA examiner then concluded by noting that the Veteran was not diagnosed with Hepatitis C until 1998, which was 32 years after his separation from service, so a nexus has not been established in this case. The Board finds that October 2020 VA opinion is probative because it contains a discussion of the relevant medical history and provides an explanation that contains clear conclusions and supporting rationale. As such, the Board gives much probative weight to the October 2020 VA examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In making this finding, the Board acknowledges the Veteran's contention that he had a blood test at Presbyterian Hospital in Dallas in the 1970s that showed Hepatitis C. See Board Hearing Tr. at 3-4. However, a review of the records in the file from Presbyterian Hospital illustrates that the first notation of Hepatitis C is from June 1998. See June 1998 private treatment record at 74. Prior to 1998, there is a diagnosis of abnormal liver function in March 1995; however, there is no diagnosis of Hepatitis C prior to the June 1998 diagnosis noted above. See March 1995 private treatment record at 42. Furthermore, the Veteran is not competent to provide a nexus opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board places more weight of probative value on the October 2020 VA opinion. In summary, the preponderance of the evidence is against a finding that the Veteran's current Hepatitis C is related to service. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Cirrhosis of the Liver The Veteran contends he has cirrhosis of the liver due to his Hepatitis C. See Board Hearing Tr. at 5. The record does not reflect and, in fact, the Veteran has not asserted that his cirrhosis of the liver is directly due to service. The Veteran has not identified any in-service incident, injury or event, and there is no indication of a relationship between the Veteran's service and his cirrhosis of the liver. The Veteran has a diagnosis of cirrhosis of the liver. See October 2020 VA examination report. However, the Board notes that the Veteran is not currently service connected for Hepatitis C. As addressed above, the Board is denying the Veteran's claim for service connection for Hepatitis C. Hence, as a matter of law, the claim for service connection for cirrhosis of the liver as secondary to Hepatitis C is without legal merit and must be denied as a matter of law. See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Low Back Disability Following the March 2020 Board remand to obtain a VA examination and opinion, the VA examiner opined in October 2020 that the Veteran's low back disability was less likely than not incurred in or caused by his service. See October 2020 VA opinion. The VA examiner cited to how the medical literature supports acute injuries after parachute jumps, but the evidence does not support late onset conditions due to parachute jumps. Id. Furthermore, the VA examiner noted that the Veteran's service treatment records do not show evidence that the Veteran reported or was treated for a back injury. Id. However, the Veteran reported at his January 2020 Board hearing that he did not get treatment for the parachute jump where he injured his back because it occurred at graduation and he was being transferred to his permanent duty station. See Board Hearing Tr. at 10. In addition, the Veteran also stated that he had symptoms of a back injury for the four to five months he was at his permanent duty station prior to his discharge, and he stated that he continued to have back pain since service. Id. at 10-11. Thus, as the examiner improperly discounted the Veteran's competent reports of back pain and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion, the opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, a remand is required to obtain an additional VA opinion to comply with the Board's March 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Bilateral Knee Disability Initially, the Board notes that the Veteran has in part contended that his bilateral knee disability is secondary to his low back disability. Thus, a decision on the remanded issue of service connectin for a low back disability could significantly impact a decision on the issue of service connection for a bilateral knee disability, the issues are inextricably intertwined. Therefore, a remand of the claim for service connection for a bilateral knee disablity is required. In addition, a review of the January 2021 VA opinion as to the direct and secondary theories of entitlement to service connection illustrates that the opinions contain inadequate rationale for adjudicative purposes. See Buchanan, 451 F.3d at 1337. Thus, upon remand, an additional VA opinion regarding direct and secondary service connection should be obtained. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his low back and bilateral knee disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing the development above, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's low back and bilateral knee disabilities. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's low back disability, was incurred in, or is otherwise related to, his time on active service, to include his parachute jump(s) and/or physical training therein? B. Is it at least as likely as not that the Veteran's bilateral knee disability, was incurred in, or is otherwise related to, his time on active service, to include his parachute jump(s) and physical training therein? C. Is it at least as likely as not that the Veteran's bilateral knee disability was caused or aggravated by his low back disability? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history, including as to why he did not receive treatment for his low back disability in service or after his discharge from service. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.