Citation Nr: 1140114	
Decision Date: 10/28/11    Archive Date: 11/07/11

DOCKET NO. 08-22 931	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to service connection for hepatitis C.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Higgs, Counsel


INTRODUCTION

The Veteran served on active duty from May 1973 to April 1975.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2007 by the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran provided testimony at a January 2009 hearing before an RO Decision Review Officer. A transcript of the hearing is associated with the claims file.


FINDINGS OF FACT

1. There is no competent evidence to show that hepatitis C began during active service or may be related to air gun injection inoculations during active service.

2. Hepatitis C was first diagnosed over twenty years after active service, and the Veteran's testimony and medical histories of record reflect an intervening risk factor for hepatitis C, sharing needles during intravenous drug abuse.


CONCLUSION OF LAW

The criteria for service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board finds that the preponderance of the evidence is against the Veteran's claim that he contracted hepatitis C as a result of air gun injections at basic training during his period of active service. The Board further finds that the Veteran's hepatitis C was first diagnosed over twenty years after active service, and that his assertions and competent medical evidence reflect an intervening risk factor for hepatitis C, sharing needles during intravenous drug abuse. As a result, the Board finds that the preponderance of the evidence is against the Veteran's claim and denies his appeal for service connection for hepatitis C.

The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

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(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 

An August 2007 VCAA letter explained the evidence necessary to substantiate the claim for service connection for hepatitis C. This letter also informed him of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In addition, the August 2007 VCAA notice letter was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

With regard to the duty to assist, the claims file contains service treatment records and reports of post-service treatment. Additionally, the claims file contains the Veteran's statements in support of his claim. The Board has reviewed such statements and concludes that he has not identified further relevant available evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record for the time period at issue. As the Veteran's hepatitis C is a serious medical condition that requires periodic medical attention, there are no doubt additional records of treatment for hepatitis C since it was first diagnosed since in 1997 and continuing into the present time. However, a current diagnosis of hepatitis C, and the date and the Veteran's health juts prior to diagnosis and circumstances of first diagnosis are established in the medical evidence of record dating from February 1997 through the time frame of the current appeal. The Board has found nothing to suggest that there is any additional reasonably identified evidence that would raise a reasonable possibility of substantiating the claim, nor has any such evidence been identified by the Veteran or his representative. See 38 U.S.C.A. § 5103A(a)-(c).

VA is not under an obligation to provide the Veteran a VA examination and medical opinion in this matter. Because there no "indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," a VA examination and opinion is as to whether the veteran's hepatitis C began during service is not required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i). The requirement under the VCAA for warranting a VA examination, that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, only the Veteran's unsupported lay assertions relate in-service inoculation injections to his current hepatitis C. There is no competent evidence relating current hepatitis C to service or an incident of service (other than arguably the Veteran's uncertain recollection that he may have shared hypodermic needles during intravenous drug abuse during service; by law service connection is not warranted where disability is a result of the Veteran's abuse of drugs-see 38 U.S.C.A. § 1110). 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(a). The Veteran has no medical training or education, and does not have sufficient medical expertise to indicate whether hepatitis C may be related to in-service air gun inoculations. Thus, his assertions in this regard are of no probative value and are insufficient to meet even the low threshold of indicating that his hepatitis C may be related to an incident of active service. Further, the Veteran has not related symptoms that he describes as due to hepatitis C as continuing from active service forward.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records (i.e., records that would tend to prove or disprove a matter in dispute) that have not yet been obtained.


Merits of the Claim

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Service connection may 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).

Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Savage v. Gober, 10 Vet. App. 488 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496.

Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. 38 U.S.C.A. §§ 1110, 1131; VAOPGCPREC 2-98. However, a Veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability. In order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).

As noted above, the Veteran served on active duty from May 1973 to April 1975. Service treatment records include no notation of treatment or diagnosis of hepatitis. At the Veteran's service discharge examination, clinical evaluation of all systems was normal, other than a notation that his tonsils had been enucleated (removed). His April 1975 service discharge PULHES profile was '1' for stamina, psychiatric health, and each body area, thus indicating that the Veteran was then in excellent physical and mental condition. See Odiorne v. Principi, 3 Vet. App. 456 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service).

VA records of treatment indicate that the Veteran was diagnosed as having hepatitis C by liver biopsy in November 1997. Relevant medical history included intravenous drug abuse and smoking crack cocaine. He has received treatment for hepatitis C from that time forward.

At an RO hearing in January 2009, the Veteran contended that his current hepatitis C was related to inoculations by an injection air gun during basic training. He recounted that he later learned that these inoculations presented a risk of passing on bacteria and viruses. When asked by his representative, he noted that he had other lifestyle risk factors that could cause hepatitis C, including drug use. He also related that he had been told that exchanging toothbrushes or razors was another way of passing hepatitis C. When asked if he had ever exchanged toothbrushes or razors, he said that he had not. He recalled that his drug use history included sharing needles. He recalled that this may have included incidents during active service. However, the law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. 38 U.S.C.A. §§ 1110, 1131; VAOPGCPREC 2-98. 
   
The Veteran does not have medical training, education or clinical experience. He does not have the medical expertise to relate his current hepatitis C to air gun injection inoculations during active service. 38 C.F.R. § 3.159(a). Because he is not medically competent to make expert medical determinations, his assertion that he has hepatitis C attributable to in-service air gun injection inoculations during basic training are of no probative value. There is no competent medical evidence to indicate that the Veteran's current hepatitis C may be due to in-service air gun injection inoculations during active service or any other incident of service. 

There is no indication or contention of continuity of symptoms of hepatitis C from active service forward. See 38 C.F.R. § 3.303(b). As discussed above, the Veteran was found to be in excellent physical and mental condition at discharge from active service, which is competent medical evidence that weighs against a finding of continuity of symptoms from active service forward. Additionally, the fact that the Veteran was not diagnosed as having hepatitis C until 1997, over twenty years after his discharge from active service, is also evidence that weighs against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding presumption of service connection for colon disability to be rebutted by clear and convincing evidence in the form of absence of post-war medical records of treatment for colon-related problems for period of many years). Each of these aspects of the evidence is of substantial probative weight against the claim.

Also, as the Veteran described at his January 2009 RO hearing, and as indicated in medical histories of record, he has experienced an alternative risk factor for hepatitis C, which is the sharing of needles during intravenous drug abuse. This is lay and medical evidence of a possible intervening cause of his hepatitis C, for which service connection is not warranted. This is evidence that weighs against the Veteran's claim as to medical causation. 

There is no competent lay or medical evidence to support the medical nexus element of the Veteran's claim, or continuity of symptoms of hepatitis C from active service forward, and as discussed directly above, there is substantial probative evidence against these aspects of his claim. The Veteran may have received air gun inoculations during basic training, as described at his RO hearing, and competent medical evidence shows that he has current hepatitis C. However, as discussed above, there are several aspects of the evidence that weigh significantly against medical causation or continuity of symptoms from active service forward. As a result, the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application in resolution of this appeal. See generally Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for hepatitis C is not warranted. 


ORDER

Entitlement to service connection for hepatitis C is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs