Citation Nr: 22032002 Decision Date: 06/01/22 Archive Date: 06/01/22 DOCKET NO. 19-16 333 DATE: June 1, 2022 ORDER Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee-instability is remanded. Entitlement to a rating in excess of 10 percent for right-knee impairment is remanded. Entitlement to a rating in excess of 10 percent for left-knee instability is remanded. Entitlement to a rating in excess of 10 percent for left-knee impairment is remanded. Entitlement to a rating in excess of 10 percent for a right-ankle disorder is remanded. FINDING OF FACT The evidence of record does not show hepatitis C was incurred during active service or caused by an event, injury or disease occurring in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service in the United States Army for the period from December 6, 1976 through December 5, 1980. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Establishing service connection generally requires: (1) the existence of a present disability; (2) 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for hepatitis C. VA received the Veteran's informal claim for compensation on December 7, 2009. However, a May 2010 rating decision denied this claim for lack of evidence for treatment of this disorder. After additional evidence was associated with the file, a January 2011 rating decision again denied the claim. The Veteran did not appeal this decision and this decision became final and closed. The Veteran filed a new claim for service connection, received on September 30, 2015. However, a February 2016 rating decision denied the claim because evidence submitted was not sufficiently new and material to reopen the claim. The Veteran initiated a timely appeal of that decision with the submission of a Notice of Disagreement (NOD), received by VA on April 6, 2016. A September 2019 Statement of the Case (SOC) confirmed the denial based on lack of new and material evidence to reopen. The Veteran promptly submitted his substantive appeal, received October 2019. In December 2020, the Board reopened the claim based on the submission of the Veteran's statement alleging how he contracted hepatitis C, deemed new and material evidence, and remanded the claim for a VA examination and opinion on service connection. However, after reviewing the April 2021 examination and opinion, the Board in August 2021 determined the opinion was inadequate, as being internally inconsistent, and remanded for a new examination and opinion. The September 2021 VA examiner rendered a negative opinion for service connection. Based on this opinion, a March 2021 Supplemental Statement of the Case (SSOC) confirmed the denial. The matter is again before the Board. The service treatment records (STRs) for the Veteran's period of honorable active service show in the December 1976 enlistment examination, the Veteran's abdomen and viscera were normal. A July 1979 Chronological Record of Medical Care states the Veteran has no record of exposure to hepatitis. In a June 1980 airborne school examination, the examiner found the Veteran had a normal abdomen and viscera and the Veteran denied any past or current stomach, liver or intestinal trouble. For this period of active service there is no separation examination and the STRs provide no evidence of complaints, treatment or diagnoses pertaining to hepatitis C or related disorders. The post-active-service record shows a VA treatment provider in November 1988 found slight elevations in the Veteran's liver function tests; however, the liver sonogram was normal. When admitted to hospital for other matters in June 1993, among the abnormalities noted on the laboratory tests was positive hepatitis C status, with the possibility of it being infectious. In January 2003, a VA treatment provider noted the Veteran as being at risk for hepatitis C, as the Veteran reported he has had multiple tattoos put on his person. In VA treatment notes in August 2003, "liver/hepatitis" appeared in the Veteran's health history. In September 2003, the treatment provider noted the Veteran has a diagnosis of hepatitis C, although he provided no details of when and where he was diagnosed. VA discharge summaries in October 2004, December 2004 and February 2005 stated the Veteran's diagnoses, to include "[h]epatitis C virus, positive." In a March 2008 addendum note, a VA staff physician observed the Veteran's past medical history "states he has hepatitis C, however, we have not confirmed this with laboratory data per CRPS." In an August 2008 VA internal medication note, the treatment provider assessed the Veteran with hepatitis C and he noted liver function tests on admission were normal and the Veteran was asymptomatic and without signs of liver disease, with no intervention needed Although a VA treatment provider in August 2012 noted the Veteran's hepatitis C, he further noted that once his other medical issues were stable, he would consider referring the Veteran to VA's liver clinic to see if he is a candidate for treatment. The treatment provider also noted hepatitis C was stable, with no issues and the Veteran's liver function tests were also stable. In August 2013, the Veteran reported to his VA treatment provider he had been to VA's liver clinic, where he was informed he was currently in remission. A VA treatment provider in February 2014 noted the Veteran's past medical history of hepatitis C and commented, "not an active issue" and the Veteran's liver function tests were normal. In August and September 2015 VA domiciliary and resident in-patient notes, the treatment providers noted there had been no prior treatment for hepatitis C, there were no recent liver function test changes, other laboratory results were negative, the Veteran was currently asymptomatic, and they would continue to monitor the Veteran for symptoms. In December 2015, first a VA ultrasound then an MRI revealed prominent periportal and portacaval lymph nodes corresponding to a finding on ultrasound, commonly seen in patients with hepatitis or other liver disease. In May 2017, a VA treatment provider noted that he reviewed renal and hepatic functions and, except for one laboratory result, both are within normal limits. An April 2018 VA liver clinic note showed a fibro scan revealed non-alcoholic fatty liver disease. As directed in the Board's December 2020 Remand, the Veteran was afforded a VA examination for hepatitis in April 2021. However, upon review of the findings and opinion the Board in August 2021 determined the examination and opinion were inadequate and again remanded the claim. The Veteran underwent another VA examination in September 2021, in which the examiner stated a July 2017 diagnosis of hepatitis C. The examiner noted its cause was unknown, but observed the Veteran has several risk factors listed on his chart, to include polysubstance abuse including level IV heroin abuse and cocaine abuse, multiple sex partners and tattoos. She noted the Veteran's reports of onset in 1993, 10 years after his military service concluded. The Veteran denied any current symptoms and the examiner noted from the record 2 laboratory results were normal. On examination, the examiner found no signs or symptoms attributable to chronic or infectious liver diseases and she again noted the Veteran's risk factors as stated above. She noted a July 2017 liver scan had revealed the hepatic parenchyma is heterogeneous and relatively increased in echogenicity without regions of sparing, which can be seen with hepatic steatosis or fibrofatty changes. December 2017 laboratory studies for hepatitis C viral titers showed "zero" and 3 of 4 September 2020 laboratory tests results were normal. The examiner opined negatively for hepatitis C caused by events in service, to include inoculations when posted in Hawaii. She explained in her rationale STRs do not show treatment or a diagnosis for hepatitis C; however, there was documentation in post-service VA records for poly substance abuse, including level-IV heroin abuse and cocaine abuse, multiple sex partners and tattoos, which she noted are all risk factors for the hepatitis C virus. She further noted the Veteran had received treatment for hepatitis C with Harvoni ending in December 2017, with laboratory results showing normal transaminase and zero viral load, and she found no further treatment for hepatitis C in the treatment records. The examiner gave an overall negative opinion for the above reasons. Although cirrhosis may be afforded presumptive service connection as "chronic disease" under 38 C.F.R. § 3.309(a), treatment records show that is not the nature of the effects on the Veteran's liver from the hepatitis C virus. As that disease does not appear among the diseases listed in the regulation, the regulation therefore is inapplicable to this claim. The Board has carefully considered the Veteran's reports to treatment providers and examiners as they appear throughout the record. Lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to provide statements of symptoms which are observable to his senses. Lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran's essential contention is based on the evidence he submitted to reopen this claim and which the Board accepted as sufficient for that purpose in its December 2020 decision and remand. The Veteran contends he contracted the hepatitis C virus from inoculations he received during the honorable period of his active service when posted to Schofield Barracks, Pearl Harbor, Hawaii in 1978. The Veteran's military personnel records reflect that he was posted in Hawaii from June 1977 to June 1979. The Veteran's STRs include an Immunization Record which documents the administration of vaccinations and other immunizations from 1976 to 1982. However, as stated above, the record shows no treatment for hepatitis C during service and, by the Veteran's own reports to the September 2021 VA examiner, its onset was no earlier than 1993. The Veteran's VA treatment records show treatment for Hepatitis C since 2001, approximately 21 years since the Veteran's honorable period of active service concluded. Moreover, post-service VA treatment records show consistent presentations at VA for the effects of drug abuse from November 1988 through at least January 2016, the month the Veteran completed a VA in-patient rehabilitation program for heroin use. The record does not show, nor has the Veteran asserted, intravenous drug abuse during active service. The Veteran's April 1984 Administrative Decision on the character of his discharge, although reflecting numerous Article 15 violations, describes those violations as related to the Veteran's verbal threats against his wife, violence directed at his wife and his repeated failure to obey orders. There are no violations pertaining to drug use. The foregoing indicates no treatment or diagnosis for hepatitis C during active service and the virus was identified around 2001, more or less in the middle of period of the Veteran's intravenous drug abuse, described repeatedly by his VA treatment providers as a "longstanding history" and "continuous." The September 2021 examiner found from her review of the record no specific cause of the Veteran contracting the virus. However, she further found in the record the Veteran has several risk factors, to include long-standing polysubstance abuse, including cocaine abuse and intravenous level-IV heroin abuse, a history of multiple sex partners and several tattoos. She concluded this represents the most clinically plausible explanation for contracting hepatitis C. The Board therefore assigns greater probative weight to the opinion of the September 2021 VA examiner. She is a medical professional who examined the Veteran during an in-person session, she thoroughly reviewed the Veteran's medical history and record and her findings, for the reasons stated above, are adequate for VA adjudication purposes. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). After review of the evidence of record and for the reasons stated, the Board finds there is no approximate balance of evidence favoring the claim service connection. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As there is no approximate balance of the evidence for the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for right knee-instability. 3. Entitlement to a rating in excess of 10 percent for right-knee impairment. 4. Entitlement to a rating in excess of 10 percent for left-knee instability. 5. Entitlement to a rating in excess of 10 percent for left-knee impairment. 6. Entitlement to a rating in excess of 10 percent for a right-ankle disorder. The Board has reviewed the findings of the April 2021 VA examinations for knee and lower-leg conditions and for ankle conditions and finds them inadequate for VA rating purposes. Although the Veteran denied any flare-ups, he specifically reported in both examinations having functional loss or functional impairment of the joints of the right and left knees and the right ankle, including but not limited to after repeated use over time. The examiner noted the Veteran described the functional loss for the knees as "[m]obility limitations, unable to walk, climb or run due to joint pains in knees with increased fall risk. She noted the Veteran's description in the ankle examination as "difficulties walking." However, the examiner for both examinations did not provide findings, estimated or otherwise, of additional loss of range of motion during repeated use over time, as required under Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board therefore cannot proceed, as the record as it now stands offers insufficient competent medical evidence for VA to decide the claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Remand is necessary for new VA examinations with complete and adequate findings for VA rating purposes. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative for information pertaining to any current treatment for right and left-knee disorders and a right-ankle disorder at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for VA examinations of the Veteran's knees and of his ankles. The complete electronic claims file should be made available to the examiner. The examiner should detail all findings. The examiner is requested to provide findings and diagnoses as to the nature, extent and current severity of the Veteran's service-connected right and left knee instability, right and left knee impairment and right-ankle disorder. The examiner is specifically requested to make findings reflecting the extent of loss of function due to repeated use over time, regardless of whether the Veteran is examined immediately after repeated use over time. If it is found that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time, it will be insufficient for the examiner to fail to make any range of motion findings on the basis that testing did not occur for repeated use over time or to make findings such as "would be mere speculation" or "there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions" or similar statements. Even if pain on repeated use over time is neither reported nor exhibited during the examination it will be insufficient for the examiner to make entries such as "not applicable," "would be mere speculation" or similar statements or fail make any findings whatsoever. The examiner must elicit from the Veteran details as to the actual effects, or what might be the effects, on function from repeated use over time when pain, weakness, fatigability, or incoordination significantly limit functional ability. If the Veteran is unable to articulate sufficiently a description, then the examiner should request the Veteran to demonstrate the extent of limitation of motion by the movement of his right and left knees and his right ankle. After doing so, the examiner is requested for VA rating purposes to estimate the loss of range of motion and function in terms of actual degrees, using his or her professional medical training, knowledge and experience. Ask the Veteran if he experiences flare-ups. If the Veteran reports flare-ups, the above directive is applicable in the same way and requires the same findings. The examiner is also reminded to produce range of motion measurements showing testing for active and passive motion and in weight-bearing and non-weight-bearing maneuvers, with findings by comparison to the undamaged opposite joint. If the foregoing testing is impracticable, induces discomfort or pain or is medically inappropriate, the examiner should provide an explanation as to why. Any commentary or opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment in the rationale on any relevant opinions found in the record. The examiner is further requested to discuss any lay evidence of the Veteran to include the Veteran's reports to treatment providers and examiners as they appear throughout the record. The Board urges the examiner to note that findings, commentary or opinions rendered without addressing and discussing lay evidence of the Veteran for these claims will be deemed insufficient for VA rating purposes. 3. After completing the above development and any other indicated development, readjudicate the claims. If the benefits sought are not granted, provide the Veteran and any representative he may have at the time with a Supplemental Statement of the Case and allow an appropriate opportunity to respond before returning the case to the Board. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.