Citation Nr: 22017337 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-15 799 DATE: March 24, 2022 ORDER 1. Entitlement to service connection for Hepatitis C is denied. REMANDED 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. 4. Entitlement to service connection for a variously diagnosed psychiatric disability, to include anxiety, depression, and mood disorder is remanded. 5. Entitlement to a rating in excess of 20 percent for lumbar strain is remanded. 6. Entitlement to a rating in excess of 10 percent for bilateral pes cavus and claw foot with hallux valgus of the great toe and first metatarsal hammertoes is remanded. FINDING OF FACT Hepatitis C was not manifested in, and is not shown to be etiologically related to, the Veteran's service. CONCLUSION OF LAW Service connection for hepatitis is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1975 to May 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision that denied service connection for bilateral hearing loss, tinnitus, Hepatitis C, sciatica of the right and left lower extremities, and a psychiatric disability, and granted service connection for lumbar strain, rated 20 percent and for bilateral pes cavus, rated 10 percent, each, effective November 14, 2011. In October 2016 a Travel Board hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript is in the record. The Board notes that the Veteran was provided an opportunity to have another hearing, but he did not respond to the request, and his opportunity for an additional Board hearing is considered to have been waived. In June 2018, the case was remanded for further development. An interim ( March 2020 ) Decision Review Officer (DRO) decision granted service connection for left and right lower extremity radiculopathy at 10 percent each, effective September 29, 2016; therefore, those matters are no longer before the Board. The Board notes that additional VA treatment records were added to the claims file since the last letter to the Veteran in October 2021 (advising him of additional records added to the file since the last supplemental statement of the case). The additional records consist of approximately 25 new pages of treatment records that are not material to any of the current claims; therefore, the Veteran is not prejudiced by the Board proceeding with adjudication of the claims. 1. Entitlement to service connection for Hepatitis C is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A July 1976 service treatment record (STR) notes that the Veteran had some type of hepatitis contact, and he was provided medication and told to return if there was a change in his condition. A March 1978 separation report of medical history notes that the Veteran reported only occasional lower back pain, and a March 1978 separation examination does not note Hepatitis C exposure. A February 1987 VA treatment record notes that the appointment was the Veteran's first VA clinical admission. An October 1987 VA treatment record notes that the Veteran was readmitted in October 1987 for drug dependence treatment with a provisional diagnosis of drug dependence, cocaine, continuous and that his last admission was from February to March 1987. An additional October 1987 treatment record notes a possible positive hepatitis diagnosis (type unknown) at Sacred Heart Hospital in June/July 1987, that he was kept 7 days, and no jaundice was shown. A December 1987 VA treatment record notes a past medical history positive for hepatitis but did not specify which type. On August 2012 VA hepatitis examination, the diagnosis was Hepatitis C type 1a with a viral load of 3,510,000 on the lab studies from December 4, 2007. A July 2009 liver ultrasound was normal. The examiner opined that the asymptomatic Hepatitis C type 1a serology on lab studies was not due to vaccination with an air gun in 1975 during service. He explained that there was no evidence based medical literature that supports that Hepatitis C is caused by or a result of air gun vaccination. The Veteran reported that he was vaccinated with an air gun in June 1975 and that he was not hospitalized or treated for jaundice during his service. He related that he was hospitalized for 2 days with jaundice in 1980 and that during that stay, he was informed he had viral hepatitis. No specific treatment was prescribed. The examiner noted that since that time, the Veteran has had a positive serology in June 2004 with a viral load of 434,000 and that he has been asymptomatic from the Hepatitis C serology since June 2004. The examiner noted that the Veteran had risk factors for Hepatitis C of intravenous drug abuse in the 1990s and a history of multiple sexual partners. He denied blood transfusions and had no history of occupational exposure to blood and body fluids. On examination, the Veteran reported no symptoms and denied symptoms of chronic fatigue. At the time of the examination, the C file was not available for review. In an November 2012 addendum for the August 2012 hepatitis examination (which was directed because the C file was not available during the examination) the examiner indicated that he had reviewed the C file and that his opinion was unchanged. A January 2013 VA treatment record notes Hepatitis C testing in 1986 that was positive. In an April 2013 addendum (to the August 2012 hepatitis examination), the examiner referenced a July 1976 STR which showed that the Veteran had hepatitis contact and notes that he was advised to return if a change in health occurred. There was no information in the file regarding a change in health (during service) after the incident. A November 1976 genitourinary evaluation was normal. The March 1978 separation examination was normal, and there was no mention of viral hepatitis or an abnormal liver. A May 1984 enlistment examination was normal, and there was no mention of a residual of viral hepatitis or an abnormal liver. The examiner opined that the Veteran's Hepatitis C was less likely than not due to his service. He explained that there was no information in the STRs regarding the Veteran undergoing evaluation and treatment for a condition that would increase his risk for viral hepatitis, the March 1978 separation examination was normal, and a March 1984 enlistment examination was normal. The Board notes that the April 2013 provider referenced a May 1984 entrance examination. Although such examination is in the file, in an August 2002 request for military records submitted by the Veteran, he only notes active-duty service from April 1975 to April 1978 and does not note any Reserve or National Guard service. Further, on his June 2004 application for VA benefits, the Veteran indicated that he did not have any additional Reserve or National Guard service. Therefore, the Board finds that further development for additional medical treatment or service personnel records after the May 1984 entrance examination is not necessary. At the October 2016 Travel Board hearing, the Veteran reported that he received a lot of vaccinations during service, was unsure of when he was initially diagnosed with Hepatitis C, and was not currently treated for Hepatitis C. A March 2017 VA memorandum from the Philadelphia VAMC notes that the Veteran's enrollment date was December 2003 for that VAMC, so records prior to that back to May 1978 do not exist. A December 2017 report of general information notes that Coatesville VAMC records for the Veteran are unavailable from May 1977 to February 1987. In its June 2018 remand, the Board directed that the Veteran be contacted and asked to provide authorizations for private records he had previously identified. A letter was sent to him in July 2018, but he did not respond. On February 2019 hepatitis examination, Hepatitis C was diagnosed. The Veteran reported that his hepatitis symptoms began after service when he was hospitalized in a private facility and diagnosed with Hepatitis C. He related that his disorder has remained the same since that time, and continuous medication to control the disorder has not been required. It was noted that the Veteran did not have any signs or symptoms attributable to chronic or infectious liver diseases. The examiner indicated that the Veteran had the risk factors for Hepatitis C of intravenous drug use or intranasal cocaine use and high-risk sexual activity. Laboratory studies showed the Veteran's AST was 38, his ALT was 34, his Alkaline phosphatase was 49, and he was positive for the Hepatitis C virus. In an April 2019 opinion, the February 2019 provider opined that it was less likely than not that the Veteran's Hepatitis C was related to his service. She referenced the March 1978 separation report of medical history which only noted low back pain and did not mention jaundice. The examiner noted that a July 1976 STR indicated that the Veteran had hepatitis contact, but there was no mention of the type of hepatitis (A, B, or C). She opined that the clinician must have meant hepatitis A which is transmitted from person-to-person through the fecal-oral route or consumption of contaminated food or water because it was the most prevalent at that time. The examiner also noted that the Hepatitis C virus was not discovered until 1989. She identified various risk factors for Hepatitis C such as sharing needles, syringes, or other equipment used to prepare or inject drugs, having sexual contact with a person infected with Hepatitis C, and sharing personal care items such as razors or toothbrushes. The examiner noted that the Hepatitis C virus was not spread by sharing eating utensils, breastfeeding, hugging, kissing, holding hands, coughing, or sneezing. It was also not spread through food or water. She indicated that the Veteran's STRs did not indicate any risk factors, treatments or evaluations which could have caused him to acquire Hepatitis C during his service. The examiner referenced the April 2013 examination and indicated that although it was noted that the Veteran reported hospitalization for jaundice at Crozer Chester Medical Center in summer 1980, in a May 1984 enlistment report of medical history, the Veteran answered that he did not have hepatitis or jaundice in the past, and there was no indication of jaundice or hepatitis in the enlistment report of physical examination. The examiner concluded that there was no sufficient evidence available to determine that the Veteran acquired Hepatitis C during his service. It is not in dispute that the Veteran has hepatitis C. It is also not in dispute that he was seen for hepatitis contact during service. However, the probative (medical, as it is a medical question), evidence in the matter indicates that the hepatitis treated in service was less likely Hepatitis C due to a lack of in-service risk factors and more likely Hepatitis A, which was more prevalent at the time. The Veteran's post service treatment records do not show a positive hepatitis C test or abnormal liver function until 1986 (approximately 8 years after service). Additionally, although the Veteran reports a diagnosis of Hepatitis C as early as 1980, he did not respond to the VA's request to provide authorizations so the records could be obtained. Therefore, such records are considered to be unavailable for review. The record does not show or suggest that the Veteran's current hepatitis C is, or may be, due to an event or risk factor in service. Whether a current hepatitis is etiologically related to remote service/a risk factor noted therein is a medical question. It requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran does not profess to have any medical expertise in infectious diseases or their etiology and does not cite to supporting medical opinion or treatise. The August 2012, April 2013, and April 2019 VA opinions are probative evidence against the Veteran's claim, and the Board finds them (cumulatively) persuasive. On August 2012 VA examination that examiner opined that the asymptomatic Hepatitis C type 1a serology on lab studies was not due to vaccination with an air gun in 1975 during service and explained that there was no evidence based medical literature that supports that Hepatitis C is caused by or a result of air gun vaccination. He also noted that the Veteran had risk factors for Hepatitis C of intravenous drug abuse in the 1990s and a history of multiple sexual partners. In an April 2013 opinion, the provider referenced a July 1976 STR which showed that the Veteran had hepatitis contact and notes that he was advised to return if a change in health occurred. There was no information in the file regarding a change in health (during service) after the incident. The examiner opined that the Veteran's Hepatitis C was less likely than not due to his service and explained that there was no information in the STRs regarding the Veteran undergoing evaluation and treatment for a condition that would increase his risk for viral hepatitis, the March 1978 separation examination was normal, and a March 1984 enlistment examination was normal. On February 2019 VA examination, the examiner indicated that the Veteran had the risk factors for Hepatitis C of intravenous drug use or intranasal cocaine use and high-risk sexual activity. The April 2019 provider also opined that it was less likely than not that the Veteran's Hepatitis C was related to his service. She opined that the clinician must have meant hepatitis A which is transmitted from person-to-person through the fecal-oral route or consumption of contaminated food or water because it was the most prevalent at that time. The provider also identified a risk factor for acquiring Hepatitis C, namely sharing drug needles with someone infected with Hepatitis C and noted that the Veteran's STRs did not indicate any risk factors, treatments or evaluations which could have caused him to acquire Hepatitis C during his service. The examiners are medical professionals with appropriate relevant expertise and their opinions are (cumulatively) probative evidence in this matter; they reflect familiarity with accurate medical history and include rationale that cites to supporting factual data (that the hepatitis the Veteran suffered in service was most likely Hepatitis A instead of Hepatitis C, that he did not have risk factors for Hepatitis C during service, and identified a more likely etiology for the hepatitis C due to his post service risk factors, namely IV drug usage and/or high-risk sexual activity). While the Board has no reason to question the Veteran's sincerity in his belief that his Hepatitis C is related the hepatitis he had in service, because he is a layperson and lacks the requisite expertise (and does not cite to supporting factual data, treatise evidence, or medical opinion), his opinion in the matter is not competent (and probative) evidence in the matter. Because there is no competent medical evidence to the contrary, the Board finds the VA examiners' opinions cumulatively persuasive. Considering the foregoing, the Board finds that service connection for Hepatitis C is not warranted, and the appeal seeking service connection for Hepatitis C is denied. REASONS FOR REMAND Although the Board sincerely regrets the delay brought on by another remand, regarding the issues of bilateral hearing loss, tinnitus, and an acquired psychiatric disorder, the opinions obtained were not responsive to the June 2018 remand directives, and corrective action is necessary. See Stegall v. West, 22 Vet. App. 268 (1998). 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss due to exposure to noise trauma in service. His MOS in service was Indirect Fire Infantryman. Given his occupation and accounts of noise therein, it may reasonably be conceded that he indeed was exposed to hazardous levels of noise in service. VA medical evidence confirms he has a bilateral hearing loss disability (as defined in 38 C.F.R. § 3.385). On February 2019 VA hearing loss examination, it was noted that the Veteran's MOS was Indirect Fire Infantryman, which has a high probability for hazardous noise exposure. The Veteran reported that during service he worked with loud mortars, the foam ear plugs he was issued were not good, he fired weapons with his right hand, and he worked in food service after his discharge from service. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was related to his service. He explained that the Veteran's entrance and separation audiograms were within normal limits without a threshold shift in either ear, and he reported no recreational noise exposure. The examiner indicated that the Veteran had mild to severe mixed hearing loss in his right ear, mild sensorineural hearing loss at 1000, 4000, and 8000 Hz in his left ear, and that (regarding only the left ear) the hearing loss may be due to the natural aging process or from noise exposure. In an March 2019 opinion, the February 2019 examiner opined (regarding the right ear) that although the mixed conductive and sensorineural hearing loss in the right ear was of unknown etiology, hearing loss due to noise exposure is sensorineural in nature rather than mixed, therefore such (mixed) conductive and sensorineural hearing loss was unlikely to be due to military noise exposure. However, he noted that the Veteran would have to be evaluated by an Otolaryngologist to determine the exact etiology of the mixed hearing loss. The examiner noted (regarding the left ear) that he had a mild hearing loss at 1000, 4000 and 8000 Hz, all other frequencies tested were within normal limits, and the most common cause of sensorineural hearing loss was the natural aging process. He further opined that the Veteran did not have any significant threshold shifts while in the military, which suggested the (left ear) hearing loss more likely than not was due to the aging process. The February and March 2019 opinions are inadequate for rating purposes because a more likely etiology was not identified for the Veteran's right ear hearing loss, and the examiner suggested that the Veteran be evaluated by an Otolaryngologist to find out the exact etiology of the mixed hearing loss. Additionally, regarding the left ear, the opinions are inconsistent, because on the February 2019 examination, the provider speculated that the left hear hearing loss may be due to the natural aging process or from noise exposure, and in the March 2019 opinion, the provider suggested that it was due solely to the natural aging process without providing clarification. Therefore, the opinions are inadequate for rating purposes, and remand for an addendum opinion is necessary. 3. Entitlement to service connection for tinnitus. In an March 2019 opinion, the examiner opined that the Veteran's tinnitus was likely due to his hearing loss and explained that hearing loss was a common cause of tinnitus. Since an alternate theory of entitlement (that tinnitus was caused or aggravated by the Veteran's bilateral hearing loss) has been raised, the claim of service connection for tinnitus is inextricably intertwined with the matter of service connection for bilateral hearing loss, and consideration of that claim must be deferred pending resolution of the bilateral hearing loss claim. 4. Entitlement to service connection for a variously diagnosed psychiatric disability, to include anxiety, depression, and mood disorder. The March 2019 opinions are inadequate for rating purposes because although the provider indicated that the claims file was reviewed, the opinion did not adequately address the various mental health diagnoses of record. The provider listed some of the various mental health diagnoses of record but essentially focused only on the depressive disorder, and although the provider discussed at length why the Veteran's depressive disorder was not directly related to service and attempted to address whether his bilateral feet and/or back disability caused or aggravated the psychiatric disability, other psychiatric diagnoses (which were diagnosed during the period on appeal) were not addressed. Therefore, remand for an adequate medical advisory opinion regarding the etiology of the Veteran's psychiatric disability is necessary. 5. Entitlement to a rating in excess of 20 percent for lumbar strain. A December 2019 VA treatment record notes that the Veteran reported low back pain with certain sleep positions or prolonged weight bearing. A May 2020 VA treatment record notes that he reported chronic back pain of 8/10 severity, use of a hot water pad helped with back pain, he took Gabapentin, and he requested a new back brace to help improve his posture. He related that it took a while for him to ease out of bed each morning but that the pain decreased somewhat after took his medications. Considering the duration of the intervening period since he was last examined [in April 2017] and that the record suggests the Veteran's back pain is worsening, a contemporaneous examination to assess the disability is necessary. 6. Entitlement to a rating in excess of 10 percent for bilateral pes cavus and claw foot with hallux valgus of the great toe and first metatarsal hammertoes. A January 2020 VA treatment record notes that the Veteran reported painful calluses and arches when he walked, his foot pain was of 8/10 severity, and he filed the calluses to make them more tolerable. He related that he noticed discoloration of his toes and that he desired left foot surgery. On examination, pain occurred with palpation of the nucleated hyperkeratotic lesions of the plantar first and fifth metatarsal heads bilaterally. The assessment was pes cavus, contracted toes, and calluses, bilaterally. A July 2021 VA treatment record notes that the Veteran reported painful bunion and hammertoes on both feet, pain to the tips of toes, pain to his feet primarily when walking, and that he felt the pain had increased over time. He related that he had tried orthotics without relief and that his bilateral foot pain was interfering with activities of daily living. The Veteran reported that he wanted left foot surgery first since his left foot was more painful. A September 2021 VA treatment record notes that the Veteran reported for an appointment four weeks after his left foot Keller bunionectomy and hammertoe repair of toes 2-5. It was noted that he used an electric scooter for mobility and that he reported ongoing left foot pain. On examination, the left foot hallux and digits were in good anatomical alignment, and the pins were removed that had been emplaced for toes 1-3. Considering the duration of the intervening period since he was last examined [in April 2017] and that the record suggests the Veteran's foot pain is worsening (at least on the right foot considering that he underwent a corrective procedure for the left foot (after which he still reported ongoing pain), a contemporaneous examination to assess the disability is necessary. The matters are REMANDED for the following: 1. Forward the Veteran's record to an appropriate audiologist (other than the February 2019 examiner) (with otolaryngological consult if necessary) for review and an advisory medical opinion regarding the likely etiology of his bilateral hearing loss and tinnitus. [If further examination of the Veteran is deemed necessary such should be arranged]. The entire record must be reviewed by the consulting provider. (a) Opine whether it is at least as likely as not (a 50% or better probability) that the Veteran's current bilateral sensorineural hearing loss is etiologically related to his service, to include as due to his acknowledged exposure to excessive level noise therein. (b) If the hearing loss disability is determined to be unrelated to service, identify the etiology for the hearing loss that is considered to be more likely (and explain why that is so). (c) If the opinion sought cannot be offered without resort to speculation, the provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (d) Identify the likely etiology for the Veteran's tinnitus. Specifically, is it at least as likely as not that it is etiologically related to the Veteran's service (was incurred therein) or was caused or aggravated by his bilateral hearing loss? If not, identify the etiology for the tinnitus considered to be more likely. The provider must include rationale with all opinions. 2. Arrange for the Veteran's record to be forwarded to the February 2019 VA provider (or if unavailable, to another appropriate [as specified by regulation] clinician), for review and an addendum opinion regarding the likely etiology of his psychiatric disability. (Unless the examiner finds that further examination is needed, an examination is not required.) [If an opinion sought cannot be provided without another examination of the Veteran, such examination should be arranged]. The consulting clinician should review the entire record and provide an opinion that responds to the following: (a) Identify (by diagnosis) each psychiatric disability found in the claims file during the period on appeal. (b) Identify the likely etiology for each psychiatric disability diagnosed; specifically, is it at least as likely as not (a 50% or greater probability) that such is directly related to the Veteran's service (was incurred therein) or was caused or aggravated (the opinion must specifically discuss the concept of aggravation) by his service-connected (back and bilateral pes cavus) disabilities? (c) If a diagnosed psychiatric disability is found to not have been incurred in service or caused by his service-connected disabilities, but to have been aggravated by such disabilities, specify, to the extent possible, the degree of severity of such disability that resulted from the aggravation (i.e., identify the baseline level of severity of the psychiatric disability before the aggravation occurred, and the level of severity of the psychiatric disability after aggravation was completed). (d) If a diagnosed psychiatric disability is determined to be unrelated to service, identify the etiology for each psychiatric disability that is considered to be more likely (and explain why that is so). (e) If the opinion sought cannot be offered without resort to speculation, the provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate. 3. Arrange for an orthopedic examination of the Veteran to assess the severity of his back disability. All symptoms and related functional impairment should be described in detail. Diagnostic studies should include active and passive range of motion studies, with notation of limitations due to pain, on use and during periods of exacerbation. Any associated neurological manifestations (and related functional limitations) should be noted. It should be noted whether the thoracolumbar spine is ankylosed, and whether there have been incapacitating episodes (bedrest prescribed by a physician) of IVDS (and if so, their frequency and duration). The examiner should include rationale with all opinions. 4. Arrange for a podiatry examination of the Veteran to assess the current severity of his service-connected left and right foot pes cavus and claw foot with hallux valgus of the great toe and first metatarsal hammertoes. His record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should: Describe in detail all pathology, symptoms, and impairment associated with the Veteran's bilateral pes cavus. [The examiner must be provided a copy of the criteria for rating foot disabilities in 38 C.F.R. § 4.71a Codes 5276 -5284 and the findings noted should include the information needed to rate the disability under those criteria.] Specifically indicate whether the Veteran has all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. The examiner should include rationale with all opinions. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.