Citation Nr: 21040768 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 10-26 897 DATE: July 6, 2021 ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran's bilateral pes planus was noted at enlistment to active duty, and this condition did not worsen beyond the natural progression of the disease during service. 2. 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. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1972 to November 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Board, in pertinent part, denied entitlement to service connection for a left knee disability, pes planus, and hepatitis C. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in June 2019, on the basis of a Joint Motion for Partial Remand (Joint Motion), vacated the aforementioned denials and remanded the matters to the Board for additional development. In October 2019, the Board remanded the case to the RO for development consistent with the Joint Motion. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such disorders as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). A veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury but is considered with all other evidence in determining if the disease or injury preexisted the military service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in the disorder during such military service, unless there is a specific finding that the increase in the disorder is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disorder underwent an increase in severity during the military service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the disorder. Aggravation may not be conceded where the disorder underwent no increase in severity during the military service on the basis of all the evidence in the record pertaining to the manifestations of the disorder prior to, during, and subsequent to the military service. 38 C.F.R. § 3.306(b). If a preexisting disorder is "noted" on entering the military service, in accordance with 38 U.S.C. § 1153, the veteran has the burden of showing an increase in the disorder during the military service. If the veteran meets that burden and shows that an increase in the disorder occurred, then the burden shifts to the government to show that any increase was due to the natural progress of the disease. Compare 70 Fed. Reg. 23,027-29 (May 4, 2005) (codified at 38 C.F.R. § 3.304(b)) with Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent that it states that the presumption of soundness may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 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). 1. Entitlement to service connection for bilateral pes planus is denied. The Veteran seeks service connection for pes planus, which he contends was aggravated by marching, jumping, and running during service. See Appellate Brief (September 2019). The question for the Board is whether the Veteran's pes planus, which preexisted service, was permanently aggravated (worsened) by an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against finding that the Veteran's pes planus was permanently aggravated by an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. Pes planus was noted upon entrance into service on a November 1972 Report of Medical Examination. Accordingly, the Veteran's pes planus is considered a preexisting disability. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Treatment records are silent as to pes planus until September 1976, when the Veteran complained of sore arches. He reported that he had not had any problems with his feet until he was assigned duty for a month that required him to stand for twelve to eighteen hours a day. He was diagnosed with flat foot and advised to use arch support. A November 1976 Report of Medical examination completed at separation from service characterized the Veteran's feet as normal. Post-service, the Veteran has not submitted any evidence showing treatment for pes planus in the months immediately following separation from service, and indeed, there is no evidence of any complaints of or treatment for pes planus for decades after separation from service. A December 2007 non-VA treatment note, along with other post-dated notes, from a state correctional facility reflects a list of chronic conditions that included flat feet. However, there were no complaints of findings suggestive of aggravation of the Veteran's preexisting foot disability due to service. Although the Veteran's February 2008 VA application for disability compensation reflects that he sought compensation for flat feet, which he reported began in February 1973, he did not provide responses to questions about "when were you treated" and where he received treatment. See VA Form 21-526 (February 2008). An April 2021 VA medical opinion reflects that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The clinician explained that, while there is evidence to indicate the Veteran continued to suffer from the disorder during service, this finding is typical of the condition and not beyond the natural progression of the disorder. The clinician concluded that there is no evidence of permanent aggravation beyond normal progression of the disability. The competent, credible evidence of record does not show that that the Veteran's pes planus permanently worsened beyond natural progression due to his military service. He sought treatment only once during service, which he attributed to being temporarily assigned to a detail requiring prolonged standing. The absence of recurrent complaints of bilateral foot pain weighs against the Veteran's contention that physical activities such as running, jumping, and marching permanently aggravated his condition. Furthermore, at his separation physical, the Veteran's feet were described as normal, which weighs strongly against finding that any permanent worsening of the Veteran's condition occurred during service. Importantly, aggravation may not be conceded where the disorder underwent no increase in severity during the military service on the basis of all the evidence in the record pertaining to the manifestations of the disorder prior to, during, and subsequent to the military service. 38 C.F.R. § 3.306(b). The Veteran has the burden of showing an increase in his disability during the military service. However, the Veteran in this case has not submitted any medical evidence to corroborate his assertion that his pes planus symptoms were permanent worsening beyond the natural progression of the condition due to in-service injury, event, or disease. The Board accepts that the Veteran is competent to report his symptoms, onset, progression, and severity. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). However, the Board finds that the Veteran is not competent report that his any symptoms he now reports, decades after his military service, represent a permanent worsening beyond the natural progression of the condition due to in-service injury, event, or disease. Id. Further, the Board finds that the Veteran's reports of aggravation lack credibility in view of only the isolated complaint in service, the absence of any physical profile limiting his activities/duties due to flat fleet, and the normal clinical evaluation of the feet at service separationwhich he signed and acknowledge, coupled with the decades intervening his military service and any documented suggestion of increased pes planus symptomatology. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant's statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). The Board assigns greater probative value to the STRs, which do not reveal any permanent worsening beyond normal progression of pes planus and show normal clinical evaluation of the feet at service separation. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Board additionally assigns greater probative value to the many years intervening service and the first documented suggestion of aggravation of pes planus due to service. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). As discussed above, a line of duty determination is generally issued when a service member incurs injury or illness that occurred on active duty). Lastly, the Board give greater the April 2021 VA medical opinion as this was prepared by skilled, neutral medical professional after review of the relevant evidence. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for hepatitis C is denied. The Veteran contends that his hepatitis C was caused by in-service air-gun inoculations. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while medical records show that the Veteran was diagnosed with hepatitis C in 2007, the preponderance of the evidence weighs against finding that the Veteran's hepatitis C began during service or is otherwise related to an in-service injury, event, or disease, to include use of air-gun inoculations. The recognized risk factors for contracting the hepatitis C virus (HCV) are 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. See VBA Fast Letter 211B (98-110) (November 30, 1998). According to VA Fast Letter 04-13 (June 29, 2004), HCV is spread primarily by contact with blood and blood products. The highest prevalence of HCV infection is among those with repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). Id. The Fast Letter further states that occupational exposure to HCV may occur in the health care setting through accidental needle sticks. Id. Thus, a veteran may have been exposed to HCV during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. Id. According to the Fast Letter, there have been no case reports of HCV being transmitted by an air-gun injection. Id. Nevertheless, it is biologically plausible. Id. The Fast Letter concludes that it is essential that the examination report upon which the determination of service connection is made include a full discussion of all modes of transmission, and a rationale as to why the examiner believes a particular mode of transmission was the source of the veteran's hepatitis C. Id. The Veteran's service treatment records are negative for any diagnosis of or treatment for hepatitis C or any other liver condition. While service treatment records show that the Veteran received a number of immunizations in service, the manner in which these injections was administered is not documented. However, even if the Board were to accept as credible the Veteran's assertion that he was inoculated with an air-gun, the preponderance of the evidence weighs against finding that the Veteran's hepatitis C was incurred in service due to air-gun inoculations. Correctional facility treatment notes show that hepatitis C was initially diagnosed in March 2007, three decades after separation from service. An August 2014 VA examination reflects that the Veteran reported that he was told that he had hepatitis C in 1989, at a blood donation site. However, the examiner noted that a test for diagnosing hepatitis C was not available until 1991. The examiner opined that the Veteran's hepatitis C was less likely than not related to any in-service incident, to include air-gun inoculations. The examiner noted that there was no documentation that the Veteran received any immunization through air gun inoculations. The examiner also noted that the record documents several post-service exposures to blood products: a possible blood transfusion in 1979, lacerations in 1980, and surgeries in 1992. However, the examiner did not identify, let alone consider, similar modes of contracting hepatitis C that are documented in service treatment records, to include excision of a neck mass on April 16, 1976, or lacerations and abrasions on January 28, 1974 and October 5, 1976. An October 2020 VA medical opinion (VAMO) concludes that the Veteran's hepatitis C is not at least as likely as not related to an in-service injury, event, or disease, including air-gun inoculation. The examiner offered the following rationale: The medical literature documents that known modes of contracting/transmission of the Hepatitis C virus are as follows: Intravenous drug use; blood transfusion; sex with an intravenous drug user; having been in jail more than three days; religious scarification; having been struck or cut with a bloody object; pierced ears or body parts; immunoglobulin injection; health care worker; organ transplantation; perinatal transmission; hemodialysis; sexual or household contact; intranasal drug use; tattooing; commercial barbering. Review of the electronic claims file did not identify nor confirm any of the above modes by which the Veteran may have contracted Hepatitis C. It is noted that the Veteran reported in a Statement in Support of Claim signed and dated on June 7, 2011 that he has not hadorgan transplant prior to 1992, blood or blood product transfusion prior to 1992, accidental exposure to blood by healthcare workers, hemodialysis, IV drug use or intranasal cocaine, high risk sexual activity, other direct percutaneous exposure to blood such as, tattoos, body piercing, acupuncture with non-sterile needles or sharing toothbrushes or shaving razors. The following were less likely than not potential modes for contracting Hepatitis C based on the prevailing literature: excision of a neck mass on April 16, 1976; lacerations in a January 28, 1974, motor vehicle accident; and a large abrasion to the left foot on October 5, 1976. The Veteran's excision of the right neck mass was conducted under sterile procedure during a hospitalization on April 16, 1976. Lacerations and abrasions are not modes for contracting Hepatitis C virus. Regarding transmission via air-gun inoculation, the examiner acknowledged that such transmission is "biologically plausible," but observed that "there is no scientific evidence to support documented transmission of hepatitis C with air-gun injectors." The examiner's opinion is probative, because it is based on an accurate medical history and medical research and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his hepatitis C is related to service, he is not competent to provide a nexus opinion regarding this issue. The Board finds that the question of whether the Veteran currently has hepatitis C due to the alleged use of air-gun injections in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather, the causes of a complex disease like hepatitis C are the subject of extensive research by scientific and medical professionals. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the August 2014 and October 2020 VA medical opinions. For the above reasons, the preponderance of the evidence weighs against finding that the Veteran's hepatitis C had onset during his active service or was caused by or related to his active service, to include the use of air-gun inoculations. Accordingly, entitlement to service connection for hepatitis C is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks service connection for a left knee disability, which he contends is related to an injury he sustained in a January 1974 motor vehicle accident (MVA) during his active service. The Board finds that the medical opinion is inadequate for adjudicative purposes because the clinician appears to have relied on an inaccurate medical history in rendering the opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); An April 2021 VA left knee examination reflects a diagnosis of left knee osteoarthritis. The associated medical opinion reflects that this condition is less likely than not related to his inservice left knee injury. The rationale was that "[a]fter reviewing Veteran's medical records, there is not sufficient evidence that indicates Veteran's left knee osteoarthritis is linked to the MVA in 1974. [Complaint of] left knee issue reported in 1974 and then not again until 2009." However, review of the record discloses that the Veteran's November 1976 service separation examination reflects that he reported persistent knee pain when kneeling; and that correctional treatment records show that the Veteran was noted to have left knee osteoarthritis in 2007. Therefore, to ensure that VA has met its duty to assist, remand is required. See Barr v. Nicholson, 21Vet. App.303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left knee disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression, and severity of any symptoms consistent with any left knee disability. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). NOTE: An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: Whether any left knee disability at least as likely as not (1) began during active service, or (2) manifested within one year after service discharge, or (3) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his current disability stems from his January 1974 left knee injury in a motor vehicle accident. Also, consider and expressly address the documented findings in October 1974 for patella tendonitis and November 1976 complaints of peristent knee pain. 2. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.