Citation Nr: 1138955 Decision Date: 10/19/11 Archive Date: 10/25/11 DOCKET NO. 08-26 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, the Board remanded the claim for further development. In August 2011, without waiving the right to have the evidence initially considered by the RO, the Veteran submitted records requested in the Board's remand, which confirm the diagnosis of hepatitis C in 1998 and treatment for hepatitis C. As the records pertain to facts already established and as the records do not relate to unestablished fact necessary to substantiate the claim, the records need not be referred to the RO for initial consideration under 38 C.F.R. § 20.1304(c). And no further action to ensure compliance with the Board's remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Hepatitis C was not affirmatively shown to have been present in service, and hepatitis C, first diagnosed 28 years after service, is unrelated to an injury, disease, or event in service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in August 2007. The Veteran was notified of the evidence needed to substantiate a claim of service connection for hepatitis C; namely, evidence of an injury or disease or event causing an injury or disease during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. He was asked to identify his risk factors for hepatitis C. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice)); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability; (2) establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). As the Veteran does not argue that he has hepatitis C since service, as the medical evidence does not suggest a nexus or link between hepatitis C and an injury, disease, or event in service, and as there is no other credible evidence that hepatitis C may be associated with service, a VA medical examination or medical opinion is not required under38 C.F.R. § 3.159(c)(4). McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Facts The Veteran's DD-214 shows that he served in Vietnam and he has a Combat Infantryman Badge and a Parachute Badge. The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of hepatitis C or of any liver abnormality. There is no record that the Veteran suffered an open wound or received a blood transfusion during service. After service, the Veteran worked as a firefighter. In his application for VA disability compensation filed in May 2007, the Veteran claimed service connection for hepatitis C, which he stated began in 1979. In his notice of disagreement and in his substantive appeal, he provided no further argument or information. Private treatment records from 1998 first document a diagnosis of hepatitis C by liver biopsy. There was no history of the risk factors for hepatitis C. Private and VA medical records from 1998 to 2009 document treatment for hepatitis C. There is no other lay or medical evidence pertaining to hepatitis C. Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis Veteran, who is a Vietnam combat Veteran, alleges the incurrence of hepatitis C during service. In the case of a Veteran who engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service connection of any injury or disease alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. So long as the evidence is consistent with the circumstances, conditions, or hardships of such service, the fact that there is no official record of such incurrence or aggravation in such service is of no consequence. 38 U.S.C.A. § 1154(b). The presumption afforded under 38 U.S.C.A. § 1154(b) deals only with the question of whether a particular injury or disease was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required. Stated differently, evidence of a current disability and a nexus to service is still required. Collette v. Brown, 82 F.3d 389 (1996). Theories of Service Connection 38 C.F.R. § 3.303(a) (Affirmatively Showing Inception In-Service) On the basis of the service treatment records alone, hepatitis C was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. 38 C.F.R. § 3.303(b) (Chronicity and Continuity of Symptomatology) 38 C.F.R. § 3.303(d) (First Diagnosed after Service) Also, as there is no competent evidence during service or since service that hepatitis C was noted, that is, observed during service, the principles of service connection pertaining to chronicity in service and continuity of symptomatology after service under 38 C.F.R. § 3.303(b) do not apply. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). As for service connection based on the initial diagnosis after service, hepatitis C was first documented in 1998 and service connection may still be granted after considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d). The remaining question is whether an event, injury, or disease in service bears a causal relationship to the diagnosis of hepatitis C after service. Hepatitis C is spread primarily by contact with infected blood or blood products. For example, blood transfusions or unsterilized needles that might be used in applying a tattoo or intravenous drug use. The evidence does not show and the Veteran has not alleged the occurrence of the common risk factors for hepatitis C during service, including contact with infected blood or blood products in service. Furthermore, hepatitis C is not a condition under case law that has been found to be capable of lay observation. Therefore, the determination as to the presence of hepatitis C is medical in nature, that is, not capable of lay observation, and competent medical evidence is needed to substantiate the claim. See Savage at 498 (On the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Also, under certain circumstances, the Veteran as a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Competency is a question of fact, which is to be addressed by the Board. Jandreau at 1377. As the presence or diagnosis of hepatitis C cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses, hepatitis C is not a simple medical condition that the Veteran is competent to identify. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a diagnosis of hepatitis C. Where, as here, there is a question of the presence or a diagnosis of hepatitis C, not capable of lay observation by case law and is not a simple medical condition under Jandreau for the reason expressed, to the extent the Veteran's statements are offered as proof of the presence of hepatitis C in service, the Veteran's statements are not competent evidence, and the statements are excluded, that is, not admissible as evidence, and the statements are not to be considered as competent evidence favorable to the claim. As for the Veteran describing a contemporaneous medical diagnosis and symptoms that later support a diagnosis by a medical professional, hepatitis C was not diagnosed before 1998. And no health-care professional has attributed hepatitis C to an injury, disease, or event in service. To the extent the Veteran has expressed the opinion that hepatitis C is related to service, the Veteran's opinion as a lay person is limited to inferences that are rationally based on the Veteran's perception and does not require specialized education, training, or experience. Here the question of the relationship between hepatitis C and an injury, disease, or event in service is not a simple medical question and as the Veteran as a lay person is not competent to declare either the presence or diagnosis of hepatitis C based on personal observation, so that any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between hepatitis C and an injury, disease, or event in service. As there is no competent evidence favorable to claim, the Board need not reach the question of the Veteran's credibility, that is, the probative value of his statements. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether evidence may be considered, that is, admissible, while credibility is a factual determination going to the probative value or weight of the evidence to be made after the evidence has been admitted.). As the preponderance of the evidence is against the claim, the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for hepatitis C is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs