17-48 914
17-48 914
| Board of Vet. App. | Aug 13, 2021Background
- Veteran served on active duty Oct 1974–Oct 1977 and Nov 1978–Aug 1986 and worked as a medic/nurse.
- Claimed infectious hepatitis (HCV) from in-service inoculation gun and needle/scalpel exposures; reports first diagnosis in 1998.
- Service treatment records contain no diagnosis or treatment for hepatitis or peripheral neuropathy; separation exams were normal.
- VA provided March 2020 and May 2021 medical opinions finding it "less likely than not" HCV was contracted in service and noting a later (1998) onset and other risk factors.
- Board found missing service records but concluded on the preponderance of the evidence that HCV and left lower-extremity peripheral neuropathy were not service connected; reopened claim accepted due to new lay evidence.
- TDIU was previously awarded effective December 5, 2012 (based on service-connected PTSD); Board denied TDIU for any period prior to that date because no service-connected disability existed earlier.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for infectious hepatitis (HCV) | HCV contracted in service from inoculation gun and needle/scalpel/body fluid exposures | No in-service diagnosis or treatment; VA medical opinions find HCV more likely acquired later (1998) and other risk factors exist | Denied — preponderance against service connection |
| Service connection for left lower-extremity peripheral neuropathy (including secondary to HCV) | Neuropathy caused by HCV (or surgical history) | HCV not service connected; service records show no in-service neuropathy or injury; medical evidence does not support nexus to service | Denied — preponderance against service connection |
| TDIU prior to Dec 5, 2012 (extraschedular basis) | Unable to secure/maintain substantially gainful employment due to multiple conditions including HCV | TDIU cannot predate effective date of service connection; only PTSD effective Dec 5, 2012; no other service-connected disability before that date | Denied — no service-connected disability existed before Dec 5, 2012 to support TDIU |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009) (service-connection elements and nexus standard)
- Cromer v. Nicholson, 19 Vet. App. 215 (2005) (heightened VA duty when service records missing)
- Milostan v. Brown, 4 Vet. App. 250 (1993) (missing service records do not excuse need for medical nexus)
- Delrio v. Wilkie, 32 Vet. App. 232 (2019) (TDIU effective date cannot precede effective date of underlying service connection)
- Allen v. Brown, 7 Vet. App. 439 (1995) (secondary service-connection principles)
- Ward v. Wilkie, 31 Vet. App. 233 (2019) (secondary service-connection and causation standards)
- Wallin v. West, 11 Vet. App. 509 (1998) (elements for secondary service connection)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt and preponderance standard)
- Russo v. Brown, 9 Vet. App. 46 (1996) (addressing duty when records are missing)
- Cuevas v. Principi, 3 Vet. App. 542 (1992) (procedural duties when records unavailable)
- O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (record completeness and claimant's burden)
- Moore v. Derwinski, 1 Vet. App. 401 (1991) (need for medical nexus evidence)