Citation Nr: 1040550 Decision Date: 10/28/10 Archive Date: 11/04/10 DOCKET NO. 09-30 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland (RO), in which the benefit sought on appeal was denied. In his testimony before the undersigned during a June 2010 hearing held at the Central Office in Washington, District of Columbia, the Veteran identified the issue on appeal, noted what pertinent evidence was outstanding, and might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. FINDING OF FACT Hepatitis C was not shown in service or for many years thereafter, and the preponderance of the evidence is against a finding that it is in any way related to the Veteran's service. CONCLUSION OF LAW The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection. So, VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, prior to the December 2008 RO decision in the matter, VA sent a letter to the Veteran in September 2008 that fully addressed some notice elements concerning his service connection claim. The letter informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. The notice letter also provide notice how disability ratings and effective dates for the award of benefits will be assigned if service connection is granted or a higher evaluation is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. Moreover, the Veteran was afforded a hearing before the undersigned where he provided testimony in support of his claim. VA also has a duty to provide an examination; but the duty only applies when such an examination is necessary to decide a claim. Here, VA did not provide the Veteran with an examination in connection with his claim for service connection for hepatitis C; however, the Board finds that an examination was not necessary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Other than the Veteran's statements that he was exposed to hepatitis C risk factors in service, there is also evidence that he was exposed to other at-risk activities after discharge. Even conceding the competency of the Veteran to discuss his in-service risk factors, the fact remains that there is no medical evidence even suggestive of a possible link between his in-service risk factors and his current diagnosis of hepatitis C (which was first made almost two decade after his discharge from service). Consequently, a remand to accord the Veteran an opportunity to undergo a pertinent VA examination is not required. 38 U.S.C.A. § 5103A(a)(2); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102 (2009); Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection The Veteran seeks service connection for hepatitis C. He currently asserts that he acquired the disease during service he received immunizations via air-jet gun, and that there was "visible blood" present on the arm of soldiers before he was inoculated with the same air-jet gun (non-sterilized). The Veteran further went on to state that the injector guns were not cleaned as the soldiers passed through for immunization. He also reports that he was potentially exposed to disease while getting a tattoo during service where the tattoo artist did not use a sterilized needle. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Service connection may also 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). To prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Here, the Veteran claims he is entitled to service connection for hepatitis C. The Veteran's post-service private treatment records show he has a current diagnosis for hepatitis C. See VA treatment records dated 2003 to 2008. A review of the Veteran's service treatment records does not show any diagnosis or treatment for any liver-related disorders, including hepatitis C. The report of his immunization history shows that the Veteran received nine shots during service. The report of a July 1976 examination prior to separation does not indicate that the Veteran had hepatitis C, or any other liver-related disorders. The remaining question on appeal is the whether the competent medical evidence of record shows that the Veteran's hepatitis C is related to his activities in service. Here, the preponderance is against such a finding. First, the Veteran does not allege, nor does the evidence of record show, that he was diagnosed with hepatitis C in service. The Veteran reports that he did not have hepatitis C prior to starting work at a VA Medical Center in September 2002. See August 2008 statements in support of the case. He also reported that test results for his employee physical revealed negative findings for hepatitis C, and a review of the report of the September 2002 employee physical examination does not show any indication of that the Veteran had hepatitis C at that time. See statement attached to October 2008 Authorization to Release Information. The first positive finding of hepatitis is shown in a December 2002 VA treatment record. The medical evidence of record does not show any hepatitis C pathology prior to December 2002, which is almost two decades after his discharge from service. The evidence does not support the claim based on continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). While Board notes that it is common medical knowledge that hepatitis C was not recognized prior to the late 1980s, the evidence does not support a finding of any symptoms consistent with hepatitis C while he was on active duty. See VBA Fast Letter 211B (98-110) November 30, 1998. In addition, the record lacks medical evidence establishing a possible relationship between the Veteran's hepatitis C and his period of active service. The Veteran asserts that his hepatitis C was incurred during service, but there is no medical evidence supporting such a link. The Board has considered the Veteran's assertion that hepatitis C was incurred during service from exposure to unsanitary air-jet inoculation guns. While the record shows that the Veteran received nine immunization shots in service, the Board notes that VA has discounted the plausibility of hepatitis C transmission with air gun injectors. See VBA, Fast letter 04-13 (June 29, 2004) (noting that while transmission with air gun injectors was biologically plausible, scientific evidence has identified that hepatitis C spreads primarily by contact with blood and blood products, with the highest prevalence of infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users and recipients of blood transfusions before 1992)). The Board also notes that the Veteran has submitted excerpts from two other Board decision pertaining to appeals of other veterans, in which their hepatitis C was found to be linked to in-service exposure to unsanitary air-jet inoculation guns. The facts and findings in prior Board decisions pertain to those veterans' cases and not to the case at hand. While it appears that excerpts from prior Board decisions may indicate that other Veterans Law Judges accepted medical evidence showing a link between the other veterans' hepatitis C and their in-service exposure to unsanitary air-jet inoculation guns, any finding in those prior Board decisions is based on evidence associated with the record of those veterans in the other appeals. The Board is not bound by findings found in previous Board decisions. Further, any finding made in a prior Board decision pertains only to the veteran who submitted that appeal. Such a finding is based on the evidence related to that veteran's medical records and the evidence in that veteran's claims file. Those decisions do not provide any specific findings or evidence to establish a link between this Veteran's hepatitis C and any aspect of his period of service. In the instant matter, there is no pronouncement from any evaluating physician indicating or suggesting that air gun immunization was the likely cause of the Veteran's hepatitis C. There no unique circumstance involving his receipt of immunizations during service to suggest the likelihood that such resulted in accidental transmission of the hepatitis C virus. Rather, as discussed below, the evidence shows that there are overriding factors involved, such as incidents of post-service at-risk exposure for hepatitis C. The Board has considered the Veteran's statements that he only engaged in hepatitis C risk activities while in service and his denial of any post-service exposure to hepatitis risk factors such as tattoos, intravenous drug use, blood transfusion and random unprotected sexual intercourse. See the June 2010 Board hearing transcript 4-6. The Veteran, as a layperson, is competent to attest to facts surrounding his claim, such as when he was exposed to hepatitis C risk factors. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In this case, the Veteran's denial of any post-service exposure to hepatitis C risk factors is inconsistent with other evidence contained in the claims folder, including his own statements in support of his claim. See Caluza v. Brown, 7 Vet. App. 498 (1995). The report of a June 1983 VA psychiatric examination shows that the Veteran reported an in-service and post-service history of substance abuse, which included heroin and cocaine. Additionally, the Veteran had previously indicated that he incurred hepatitis C from occupational exposure to "organic matter, infectious organisms, and to disagreeable odors" and "minor injury situations such as cuts, bruises, abrasions" while working in VA healthcare facility for several months. See August 2008 statements in support of the case and December 2008 notice of disagreement. During the June 2010 hearing, the Veteran testified that safety precautions were used at the VA healthcare facility to prevent exposure to diseases, such as hepatitis C. The Board finds that the Veteran denial of any post-service exposure to hepatitis C risk factors is not credible. See Caluza, 7 Vet. App. at 498. In light of the evidence that shows the Veteran was not diagnosed with hepatitis C until after service, and his reports that he engaged in hepatitis C risk factors during service and after service, the Board finds that the preponderance of the evidence is against a finding that hepatitis C was incurred in service, or is otherwise related to any aspect of service. Also, there is no medical evidence that links the Veteran's current disability to his service. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs