Citation Nr: 1101080	
Decision Date: 01/10/11    Archive Date: 01/20/11

DOCKET NO.  04-33 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in Buffalo, New York


THE ISSUES

1.  Entitlement to service connection for prostate cancer, to 
include as a result of exposure to herbicides. 

2.  Entitlement to service connection for hepatitis C.  


REPRESENTATION

Veteran represented by:	Military Order of the Purple 
Heart of the U.S.A.


ATTORNEY FOR THE BOARD

Katie K. Molter, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from March 1963 to March 1965 
and from August 1965 to March 1969.  

This matter is before the Board of Veterans' Appeals (Board) on 
appeal from a March 2004 rating decision by the RO which denied 
the Veteran's claims for service connection for prostate cancer, 
hepatitis C, and non-Hodgkin's lymphoma.  The Veteran perfected a 
timely appeal.  The Board notes that during the pendency of the 
appeal, the Veteran's claim for service connection for non-
Hodgkin's lymphoma was granted.  

These claims were previously before the Board and were remanded 
in June 2006 and July 2009.  


FINDINGS OF FACT

1.  After resolving all reasonable doubt, the Veteran had active 
service in the Republic of Vietnam during the Vietnam era and 
therefore is presumed to have been exposed to herbicides.  

2.  The Veteran has been diagnosed with prostate cancer.  

3.  The evidence of record fails to demonstrate a causal 
relationship between the Veteran's hepatitis C and his military 
service.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for prostate cancer due 
to exposure to herbicides are met.  38 U.S.C.A. §§ 1110, 1112, 
1116, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 
3.309, 3.313 (2010).

2.  The criteria for service connection for hepatitis C are not 
met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 
(2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed 
into law on November 9, 2000.  Implementing regulations were 
created, codified at 38 C.F.R. § 3.159 (2010).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) must: (1) inform the claimant about the information and 
evidence not of record that is necessary to substantiate the 
claim; (2) inform the claimant about the information and evidence 
that VA will seek to provide; and (3) inform the claimant about 
the information and evidence that the claimant is expected to 
provide.  38 C.F.R. § 3.159(b)(1) (2010).

The United States Court of Appeals for Veterans Claims (Court) 
held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to 
the extent possible the VCAA notice, as required by 38 U.S.C.A. § 
5103(a) (West 2002), must be provided to a claimant before an 
initial unfavorable decision on a claim for VA benefits.  
Pelegrini, 18 Vet. App. at 119- 20; see also Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Prior to the initial adjudication of the Veteran's claims for 
service connection, he was provided notice of the VCAA in two 
July 2003 letters.  The VCAA letter indicated the types of 
information and evidence necessary to substantiate the claim, and 
the division of responsibility between the Veteran and VA for 
obtaining that evidence, including the information needed to 
obtain lay evidence and both private and VA medical treatment 
records. Thereafter, the Veteran received additional notice in 
October 2006, pertaining to the downstream disability rating and 
effective date elements of his claims, and was furnished a 
Statement of the Case in September 2010.  Dingess v. Nicholson, 
19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, supra.

All relevant evidence necessary for an equitable resolution of 
the issues on appeal has been identified and obtained, to the 
extent possible.  The evidence of record includes service 
treatment records, personnel and service department records, VA 
outpatient treatment reports, private medical records, VA 
examination reports and statements and testimony from the Veteran 
and his representative.  The Veteran has not indicated that he 
has any further evidence to submit to VA, or which VA needs to 
obtain.  There is no indication that there exists any additional 
evidence that has a bearing on this case that has not been 
obtained.  The Veteran and his representative have been accorded 
ample opportunity to present evidence and argument in support of 
his appeal.  All pertinent due process requirements have been 
met.  See 38 C.F.R. § 3.103 (2010).

II.  Pertinent Laws and Regulations

In general, service connection may be granted for disability 
resulting from disease or injury incurred or aggravated during a 
Veteran's active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 
3.303.

In addition, service connection may be granted for any disease 
diagnosed after discharge from service when all the evidence, 
including that pertinent to service, establishes that the disease 
was incurred in service.  38 C.F.R. § 3.303(d).

In order to prevail on the issue of direct service connection 
there must be: (1) medical evidence of a current disability; (2) 
medical evidence, or in some cases lay evidence, of in- service 
occurrence or aggravation of a disease or injury; (3) and, 
medical evidence of a nexus between an in-service disease or 
injury and the current disability.  See Hickson v. West, 12 Vet. 
App. 247, 253 (1999).

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the veteran prevailing in either event, 
or whether a preponderance of the evidence is against a claim, in 
which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).

For purposes of establishing service connection for a disability 
resulting from exposure to herbicide agents, a veteran who had 
active military, naval, or air service in the Republic of Vietnam 
during the Vietnam Era, beginning on January 9, 1962, and ending 
on May 7, 1975, will be presumed to have been exposed to an 
herbicide agent during that service, unless there is affirmative 
evidence to establish that the veteran was not exposed to any 
such agent during that service.  U.S.C.A. § 1116(f); 38 C.F.R. §§ 
3.307(a)(6)(iii), 3.309(e).

The following diseases are deemed associated with herbicide 
exposure, under current VA law: chloracne or other acneform 
diseases consistent with chloracne, Type 2 diabetes, Hodgkin's 
disease, multiple myeloma, non-Hodgkin's lymphoma, acute and 
subacute peripheral neuropathy, porphyria cutanea tarda, prostate 
cancer, respiratory cancers (cancer of the lung, bronchus, 
larynx, or trachea), and soft-tissue sarcomas (other than 
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  
The foregoing diseases shall be service connected if a veteran 
was exposed to an herbicide agent during active military, naval, 
or air service, if the requirements of 38 U.S.C.A. § 1116, 38 
C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record 
of such disease during service, provided further that the 
rebuttable presumption provisions of 38 U.S.C.A. § 1113 (West 
2002); 38 C.F.R. § 3.307(d) are also satisfied.  38 U.S.C.A. §§ 
501(a), 1116; 38 C.F.R. §3.309 (e).

The diseases listed at § 3.309(e) shall have become manifest to a 
degree of 10 percent or more at any time after service, except 
that chloracne or other acneform disease consistent with 
chloracne, porphyria cutanea tarda, and acute and subacute 
peripheral neuropathy shall have become manifest to a degree of 
10 percent or more within a year after the last date on which the 
veteran was exposed to an herbicide agent during active military, 
naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).

The determination as to whether the requirements for service 
connection are met is based on an analysis of all of the evidence 
of record and the evaluation of its credibility and probative 
value.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) 
(2010).  See Baldwin v. West, 13 Vet. App. 1 (1999).  When there 
is an approximate balance of positive and negative evidence 
regarding a material issue, the benefit of the doubt in resolving 
each such issue shall be given to the claimant. 38 U.S.C.A. § 
5107(b) (West 2002); 38 C.F.R. § 3.102 (2010).  See Ortiz v. 
Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).  If the Board 
determines that the preponderance of the evidence is against the 
claim, then it has necessarily found that the evidence is not in 
approximate balance, and the benefit of the doubt rule will not 
be applicable.  Ortiz, 274 F.3d at 1365.

III.  Analysis

A.  Prostate Cancer

The Veteran has alleged that he has developed prostate cancer as 
a result of exposure to herbicide agents while serving in 
Vietnam.  The Service Department confirmed that the Veteran 
served aboard the USS Repose which was in the official waters off 
the Republic of Vietnam.  However, they were unable to prove that 
the Veteran had incountry Vietnam service.  38 C.F.R. § 3.313 
provides that service in Vietnam includes service in the waters 
offshore, if the conditions of service involved duty or 
visitation in Vietnam. 

The Veteran has asserted that he was incountry in Vietnam.  
Specifically, the Veteran has indicated that he was on land in 
Vietnam at least on two occasions.  First, he stated that he went 
to get a passport in order to take leave to Australia.  Secondly, 
he stated he had to go on land when he flew to the Naval Hospital 
in Long Beach for treatment prior to his discharge.  A November 
1968 record in the Veteran's claims file shows that the Veteran 
was approved for a visit to Australia.  While this does not 
necessarily show that the Veteran went on land to obtain a 
passport for his visit to Australia, it does provide 
corroborative evidence that the Veteran's lay testimony is 
credible.  In addition, the Veteran's personnel records show that 
the Veteran was transported to the Naval Hospital in Long Beach, 
California from September 5, 1968, to October 4, 1968 for 
treatment.  These records support the Veteran's contention that 
he would have had to go incountry to fly out to California, as he 
was stationed aboard a United States ship.  

Thus, after considering the Veteran's statements, in conjunction 
with the personnel and service records, and after resolving all 
reasonable doubt in favor of the Veteran, the Board finds that 
for the Veteran was incountry in Vietnam, during the Vietnam War, 
and therefore is presumed to have been exposed to herbicides.  

The medical evidence shows that the Veteran has been diagnosed 
with prostate cancer.  Prostate cancer is a disease listed under 
38 C.F.R. § 3.309(e).  Therefore, since it is presumed that the 
Veteran was exposed to herbicide agents and he has been diagnosed 
with prostate cancer, service connection is warranted.  

B.  Hepatitis C

The Veteran has alleged that he has developed hepatitis C as a 
result of his military service.  Specifically, the Veteran has 
alleged that he was exposed to bloody linens and towels as a 
launderer aboard the USS Repose and as a result, contracted 
hepatitis C.    

Service treatment records are void of any complaints or diagnosis 
of hepatitis C.  

A service treatment record dated in November 1964 shows that the 
Veteran was diagnosed with urethritis, acute, due to gonococcue.  
The Veteran presented at sick call with complaints of urethral 
discharge of two days duration.  The Veteran admitted to sexual 
exposure in France.  

A September 2001 VA treatment record shows that the Veteran was 
seen for a physical to re-establish care.  The Veteran indicated 
that his ex-wife had hepatitis C and he asked to be checked for 
that condition.  An October 2001 addendum shows that the Veteran 
tested positive for the virus that caused hepatitis C.  The 
Veteran was referred to the liver clinic.  

A December 2001 VA treatment record shows that the Veteran was 
referred for evaluation of his hepatitis C.  His viral risk 
factors include sexual promiscuity in years past, IV drug use, 
blood transfusions, and tattoos.  The Veteran admitted to 
drinking 1 to 2 pints of whiskey per day for 6 or more years, he 
quit 17 years ago.  He also indicated that he used IV heroin in 
the late 1960's.  The Veteran was assessed as having probable 
chronic hepatitis C with multiple risk factors.  

A January 2004 VA examination report shows that the Veteran 
reported current treatment with pegylated interferon weekly 
injections and epoetin injections which he just started about 3 
weeks ago.  The Veteran reported a history of significant alcohol 
use in the past but no alcohol since 1983.  He does not smoke 
cigarettes.  He has smoked marijuana in the past occasionally.  
His liver biopsy revealed that he had grade 3 changes.  There 
were no other causes of liver injury on his liver biopsy other 
than hepatitis C.  He was then started by GI on therapy for his 
hepatitis C.  He is asymptomatic as far as chronic liver disease.  
There are no extrahepatic manifestations of hepatitis C.  He has 
abnormal transaminases.  Again, the liver biopsy performed in 
March 2002 revealed significant liver disease.  The examiner 
indicated that he was asked to furnish an opinion about the 
relationship between the current HCV infection and confirmed or 
supported risk factors.  The only risk factor that he confirms is 
basically that he worked in the ship's laundry on a hospital ship 
and was exposed continuously to bloody towels, drapes, and 
sheets.  They wore no protection in those days to prevent what 
was then unknown as hepatitis C.  He was not using IV drugs.  He 
was not sexually promiscuous, although he did visit houses of 
prostitution from time to time.  The examiner stated that he 
believed that there was a significant chance that the Veteran's 
current hepatitis C infection was related to exposure to bloody 
drapes, towels, and sheets.  This is known to be a high risk 
factor in these days, but in those days, during the Vietnam War, 
hepatitis C was an unknown entity, and no protection was really 
worn to prevent any infection.  Therefore, I believe that his 
current hepatitis C is related to that particular risk factor.  
This is not speculation or conjecture.  He did work with bloody 
linens and that is indeed an exposure factor.  

The January 2004 VA examiner provided an addendum opinion in 
March 2004.  The examiner stated that the most common risk 
factors for contracting hepatitis C are intravenous drug use and 
blood or blood product transfusions before 1992.  (1) IV drug 
abuse-60-80% of all IV drug users have hepatitis C infection 
because they share needles (2) blood transfusions-blood banks 
did not test the blood supply for hepatitis C before 1992 (3) 
sexual promiscuity-high risk sexual behavior, especially having 
multiple sexual partners, is associated with and increased risk 
of getting hepatitis C (4) hepatitis C infected ex-wife-
hepatitis C is not easily spread through sexual intercourse.  The 
examiner indicated that the risk factors are listed in order of 
highest to lowest risk of infection.  

A March 2009 VA examination report shows that the examiner 
reviewed the Veteran's claims file.  The examiner noted that 
there were no documented instances of the Veteran handling bloody 
linens while he was in the military.  The Veteran's documented 
viral risk factors include IV drug use, blood transfusions, 
tattoos, and sexual promiscuity.  The examiner noted that in 
January 2004, Dr. R.K. stated that the Veteran was not using IV 
drugs and was not sexually promiscuous while he was in the 
military.  In December 2007, T.M., NP stated that the Veteran did 
say that he had a history of IV drug use.  The examiner indicated 
that the hepatitis C virus is transmitted mainly by contact with 
blood and blood byproducts.  Sharing of contaminated needles 
among IV drug abusers is the most common mode of transmission.  
Using a needle to inject recreational drugs, even once, is a risk 
factor for hepatitis C.  It was the opinion of the March 2009 VA 
examiner that it is not as likely as not that any hepatitis C had 
its onset during the Veteran's military service or is otherwise 
medically related to the service.   

A November 2009 VA examination report shows that the examiner 
reviewed the Veteran's claims file.  The examiner opined that the 
Veteran put himself at risk for contracting hepatitis C when he 
got tattoos and used IV drugs.  The fact that the Veteran worked 
in the laundry of a hospital ship, in a war zone, is verified.  
The examiner explained that the hepatitis C virus is transmitted 
mainly by contact with blood and blood byproducts.  Sharing of 
contaminated needles among IV drug users is the most common mode 
of transmission.  The use of contaminated needles from tattooing 
is also a mode of transmission.  It is as likely as not that the 
hepatitis C could have been caused by anyone of these risk 
factors.  It would be pure speculation to attempt to determine 
which risk factor likely caused the hepatitis.  

A January 2010 addendum to the November 2009 examination report 
states that it is the opinion of the examiner that the IV drug 
use is more likely than not the cause of the Veteran's hepatitis 
C.  It is not likely that the hepatitis C had its onset during 
military service.  The medical literature states that the most 
common mode of transmission is IV drug use and needle sharing.  

A June 2010 VA examination report shows that the examiner 
reviewed the Veteran's claims file as well as the January 2004 VA 
examination, the March 2004 addendum opinion, the March 2009 
addendum opinion, and the November 2009 opinion.  

The examiner diagnosed the Veteran with a history of hepatitis C 
virus, treated with interferon and erythropoietin, now in 
remission, and opined that the Veteran's former hepatitis C was 
less likely as not caused by or a result of his service in the 
ship's laundry on a hospital ship.  It was noted that the 
Veteran's recent laboratory tests indicated normal hepatic 
function and no evidence of hepatitis C antibody, thus, medical 
treatment with interferon and erythropoietin effectively 
eliminated the hepatitis C infection, and it is now in remission.  

The examiner provided a thorough rationale for his opinion.  
Hepatitis C virus is transmitted by exposure to the blood of an 
infected person through contact with mucous membranes or breaks 
in the skin (including cuts, accidental needle sticks, and sexual 
contact), blood transfusion, and IV drug use involving use of 
shared needles.  Medical history reviewed does not indicate an 
occupational exposure to hepatitis C virus while in service-that 
is, although the Veteran may have handled bloody linens, intact 
skin is a barrier to infection, thus preventing actual exposure.  
While it is possible that there may have been some incidental 
occupational exposure in service through minor skin breaks or 
abrasions while handling bloody linens, the medical history also 
indicates potential sexual exposure and IV drug use.  In the 
United States, IV drug use is the most frequent and likely means 
of acquiring hepatitis C virus infection.  Thus, the medical 
examiner concurs with the findings of the GI consultant who 
concluded multiple risk factors, as well as previous compensation 
examiners who noted such multiple factors and were unable to make 
a conclusion regarding the causal factor.  Given that the history 
shows risk taking behavior (illegal drug use resulting in 
discharge from the service, and heavy alcohol use), potential 
occupational exposure (undocumented) sexual contact resulting in 
venereal disease, and IV drug use, it is impossible to state that 
the Veteran's service in a hospital ship's laundry alone caused 
or resulted in the previous hepatitis C infection.  

In support of the Veteran's claim are (1) the Veteran's lay 
statements and (2) the opinion of January 2004 VA examiner.  With 
respect to the Veteran's lay statements which have asserted a 
casual relationship between the Veteran's handling of bloody 
linens as a launderer while on active duty and his hepatitis C, 
the Board finds that the Veteran is not competent to offer an 
etiology opinion.  To the extent that the Veteran himself has 
related his current hepatitis C to his service, the Board 
observes that lay witnesses may, in some circumstances, opine on 
questions of diagnosis and etiology.  See Davidson v. Shinseki, 
581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical 
statement that "a valid medical opinion" was required to 
establish nexus, and that a layperson was "not competent" to 
provide testimony as to nexus because she was a layperson, 
conflicts with Jandreau).  However, in this case, a contention 
that the Veteran's hepatitis C is related to service is an 
etiological question as to an internal disease process unlike 
testimony as to a separated shoulder, varicose veins, or flat 
feet, which are capable of direct observation.  See Jandreau, 492 
F.3d at 1376 (lay witness capable of diagnosing dislocated 
shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is 
competent to establish the presence of varicose veins); Woehlaert 
v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins 
or a dislocated shoulder, rheumatic fever is not a condition 
capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 
(lay person competent to testify to pain and visible flatness of 
his feet).  

With respect to the January 2004 VA examiner's opinion, the Board 
observes that the January 2004 examiner opined that there was a 
significant chance that the Veteran's current hepatitis C 
infection was related to exposure to bloody drapes, towels, and 
sheets.  The examiner explained that in reaching this opinion, he 
considered the fact that the Veteran denied IV drug use and was 
not sexually promiscuous.  The Board finds that the January 2004 
VA examiner's opinion is of diminished probative value because 
the Veteran provided an inaccurate medical history to the 
examiner, which the examiner based his opinion on.  Specifically, 
the Veteran denied IV drug use and failed to disclose other risk 
factors such as alcohol abuse, and tattoos.  However, the 
evidence of record shows that the Veteran reported IV heroine 
drug use and was disciplined in the military for drug activity.  
The evidence also shows that the Veteran was an alcoholic and got 
tattoos.  Thus, the examiner based his opinion on inaccurate 
information.  This is especially significant given the March 2004 
addendum to the January 2004 VA examination report which stated 
that the most common risk factors for contracting hepatitis C are 
intravenous drug use and blood or blood product transfusions 
before 1992.  For these reasons, the January 2004 examiner's 
opinion lacks probative value.  

The March 2009, January 2010 addendum (to a November 2009 
examination) and June 2010 VA opinions weigh against the 
Veteran's claim.  The March 2009 examiner stated that sharing of 
contaminated needles by IV drug abusers is the most common mode 
of transmission and found it not as likely as not that any 
hepatitis C had its onset during military service or is otherwise 
medically related to service.  The January 2010 addendum states 
that it is the opinion of the examiner that the IV drug use is 
more likely than not the cause of the Veteran's hepatitis C.  It 
is not likely that the hepatitis C had its onset during military 
service.  The medical literature states that the most common mode 
of transmission is IV drug use and needle sharing.  Similarly, 
the June 2010 examiner stated that the Veteran's former hepatitis 
C was less likely as not caused by or a result of his service in 
the ship's laundry on a hospital ship.  These examiners had all 
of the Veteran's risk factors before them and were able to 
consider all of the relevant information in forming their 
opinions.  Thus, the Board finds these opinions to be more 
probative than then January 2004 opinion.  

The June 2010 examiner noted that the Veteran's medical history 
reviewed does not indicate an occupational exposure to hepatitis 
C virus while in service-that is, although the Veteran may have 
handled bloody linens, intact skin is a barrier to infection, 
thus preventing actual exposure.  The board has carefully 
reviewed the Veteran's service treatment records and notes that 
they were void of complaints of cuts, scrapes, or other skin 
injuries while in service.  



After considering all of the evidence of record, the Board finds 
that the preponderance of the evidence is against the Veteran's 
claim.  There is no competent medical evidence which supports the 
Veteran's contention that his hepatitis C is related to his 
military service.  In reaching these determinations, the Board 
has considered the doctrine of reasonable doubt.  However, as the 
preponderance of the evidence is against the Veteran's claim, the 
doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).


ORDER

Entitlement to service connection for prostate cancer, to include 
as a result of exposure to herbicides, is granted.  

Entitlement to service connection for hepatitis C is denied.  




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs