Citation Nr: 1102254 Decision Date: 01/20/11 Archive Date: 01/26/11 DOCKET NO. 08-17 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1968 to April 1970. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's claim. In July 2010, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2010). The requested opinion has been provided and has been associated with the Veteran's VA claims folder. The VHA opinion has been provided to the Veteran and his representative. The Veteran was afforded 60 days to provide additional argument or evidence and was notified of such in a letter dated September 2010. The Veteran's representative submitted additional argument in December 2010. FINDINGS OF FACT The competent medical evidence of record does not support a finding that a relationship exists between the Veteran's currently diagnosed hepatitis C and his military service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to service connection for hepatitis C, which he contends was incurred during his military service. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Notice The VCAA requires VA to notify a veteran and a veteran's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of this notice, VA is to specifically inform a veteran and a veteran's representative, if any, of which portion, if any, of the evidence is to be provided by a veteran and which part, if any, VA will attempt to obtain on behalf of a veteran. See 38 U.S.C.A. § 5103; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied. The Veteran was informed of the evidentiary requirements for service connection in a letter dated in April 2006. Crucially, the RO informed the Veteran of VA's duty to assist him in the development of his claim in the April 2006 VCAA letter. Specifically, the letter stated that VA would assist the Veteran in obtaining relevant records such as all records held by Federal agencies to include service treatment records or other military records, and medical records from VA hospitals. With respect to private treatment records, the letter informed the Veteran that VA would request such records, if the Veteran completed and returned the attached VA Form 21-4142, Authorization and Consent to Release Information. The letter also notified the Veteran that he would be afforded a VA examination if necessary to make a decision on his claim. The April 2006 VCAA letter emphasized: "[i]f the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the original]. The VCAA letter also specifically requested: "[i]f there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided with Dingess notice in a March 2006 letter, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations, and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the March 2006 letter instructed the Veteran that two factors were relevant in determining effective dates: when a claim was received and when the evidence "shows a level of disability that supports a certain rating under the rating schedule." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the Veteran may not have submitted, and reports of treatment while attending training in the Guard or Reserve. Accordingly, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. As there is no indication that there exists any evidence which could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). In the instant case, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating it. The evidence of record includes the Veteran's statements, service treatment records, and VA and private treatment records. As indicated above, a VHA opinion was obtained in July 2010 as to the hepatitis C claim. The VHA opinion reflects that the examiner thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered an opinion which appear to be consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) [the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion]. The Board therefore concludes that the VHA medical opinion is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the issue has been consistent with said provisions. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2010). He has retained the services of a representative and he declined the option to testify at a personal hearing before a Veterans Law Judge. Accordingly, the Board will proceed to a decision. Relevant law and regulations Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). In order to establish service connection for the claimed disorder, there must be (1) 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) 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 these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A VA "Fast Letter" issued in June 2004 (Fast Letter 04-13, June 29, 2004) identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles from tattoos, body piercing, and acupuncture. The fast letter indicates, in its Conclusion section, that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. In order to show a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Analysis The Veteran seeks entitlement to service connection for hepatitis C, which he contends was incurred during his active military service. In order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus between the first two elements. See Hickson, supra. With respect to Hickson element (1), current disability, the medical evidence of record demonstrates an initial diagnosis of hepatitis C in February 2002. A continuing diagnosis of hepatitis C was documented by the September 2006 VA examiner. Accordingly, Hickson element (1) has been satisfied. Regarding Hickson element (2), the Board will separately discuss disease and injury. With respect to disease, the Veteran's service treatment records are pertinently negative for a diagnosis of hepatitis while in service. The Veteran's service separation examination is absent any mention of a hepatitis diagnosis. No additional medical evidence has been submitted to indicate any in-service hepatitis diagnosis. As indicated by the record, the first diagnosis of hepatitis was documented in May 1971, over a year after the Veteran's discharge from military service. See the VA discharge summary dated June 1971. Thus, the Board finds that the portion of Hickson element (2) dealing with in-service incurrence or aggravation of a disease has not been met. With respect to in-service injury, the Veteran has asserted that he was exposed to the blood of fellow and enemy soldiers during his Vietnam service. See, e.g., the Veteran's statement dated December 2005. The Board has no reason to doubt the Veteran's contentions in this regard as they are consistent with his service personnel records which document his experience as a combat engineer in Vietnam. As such, the Board finds that Hickson element (2) has been satisfied to this extent. The Board also notes that the Veteran told the September 2006 VA examiner that he received a tattoo during his military service. See the VA examination report dated September 2006. The Board recognizes that a tattoo is a risk factor for hepatitis C infection. See the VA Fast Letter 04-13, June 29, 2004. Crucially, however, the Veteran's statement to the September 2006 VA examiner is contradicted by the evidence of record, including his own prior statement in which he indicated that he received his tattoo in 1976. See the Veteran's statement dated April 2006. Moreover, the Veteran's service separation examination is absent any mention of a tattoo. Accordingly, based upon the Veteran's contradictory statements and the April 1970 service separation examination, the Board finds that the evidence does not support the Veteran's September 2006 assertion that he received a tattoo in service. Turning to crucial Hickson element (3), medical nexus, the competent medical evidence of record does not support the Veteran's contention that his currently diagnosed hepatitis C is due to his military service. Specifically, the July 2010 reviewing VHA physician concluded that "it is not at least as likely as not that the Veteran's currently diagnosed hepatitis C is due to his exposure to blood during combat conditions while serving in the Republic of Vietnam." The VHA physician further stated that the Veteran reported two risk factors: blood exposure during combat and a tattoo. The physician explained that, "[t]he tattoo was not documented on his separation physical in April, 1970. He was first diagnosed and hospitalized with hepatitis in May, 1971, over 12 months after discharge in April, 1970." He further opined, "[i]n a study of 1,288 Veterans, seropositivity to hepatitis C was clearly increased with tattoos. This study included 588 combat Veterans. There was relatively less risk of hepatitis C seropositivity with military related exposures such as air injection and blood exposure in combat than with tattoos." The VHA reviewing physician was also asked to address the relationship, if any, between the 1971 diagnosis of hepatitis and the Veteran's military service and his currently diagnosed hepatitis C. In answering this inquiry, the VHA physician initially noted that the Veteran "was discharged from active duty in April 1970 and the hospitalization for hepatitis was in May through September, 1971. The interval from service in South Vietnam and the hospitalization exceeds 12 months. This is longer than the incubation period for hepatitis A, B, and C." The VHA physician went on to state that although "it is difficult to establish the relationship between the 1971 [post- service] hepatitis" and the currently diagnosed hepatitis C, "[i]f the patient was not found to have antibodies to hepatitis A or B following the acute infection in 1971, it is as likely as not that this was due to acute hepatitis C." This VHA medical opinion appears to have been based on a thorough review of the record, including the Veteran's comprehensive treatment records, and a thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Board therefore finds the July 2010 VHA opinion to be probative as to the issue of medical nexus. Also of record as to the issue of medical nexus is the opinion of the September 2006 VA examiner. Specifically, the VA examiner stated that "the Veteran's hepatitis C infection is as likely as not related to previous history of hepatitis in 1971, tattoo left upper arm in 1968." Critically, the VA examiner provided no rationale for this conclusion and also failed to provide an opinion concerning the relationship, if any, between the Veteran's hepatitis and his in-service blood exposure. See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Accordingly, the Board finds the September 2006 VA opinion to be of little probative value. The Board has considered the Veteran's lay statements that his currently diagnosed hepatitis C is due to his military service. In this regard the Board notes that the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he has experienced certain observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) [holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability]; see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay witnesses may, in some circumstances, opine on questions of etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) [holding that the 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]. This does not mean, however, that lay evidence is necessarily always sufficient to render opinions concerning medical nexus, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide such evidence. Crucially, in this case, the issue of whether the Veteran's hepatitis C is due to his blood exposure during military service is a question requiring medical expertise and such conclusions require more than lay testimony pertaining to matters which are capable of direct observation. C.f. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) [holding that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis] with Jandreau, 492 F.3d at 1376 [holding that lay witness capable of diagnosing dislocated shoulder]; Barr, 21 Vet. App. at 308-309 [holding that lay testimony is competent to establish the presence of varicose veins]; Falzone v. Brown, 8 Vet. App. 398, 405 (1995) [holding that lay person competent to testify to pain and visible flatness of his feet]. The lay statements of the Veteran concerning the etiology of his currently diagnosed hepatitis C are therefore not competent in this regard. To some extent, the Veteran appears to be contending that he has suffered from hepatitis C continually since service. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. However, supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120- 121 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. The Board recognizes that the medical evidence documents a 1971 diagnosis of hepatitis, which the July 2010 VHA reviewing physician indicated was at least as likely as not related to the Veteran's currently diagnosed hepatitis C. Crucially, however, the VHA physician also specifically concluded that the post- service hepatitis diagnosis was unrelated to any in-service exposure to blood, as the time between possible exposure and diagnosis exceeded the incubation period. Accordingly, the medical evidence does not support the Veteran's contentions pertaining to continuity of symptomatology after service; therefore, continuity is not demonstrated by the record. Accordingly, Hickson element (3), medical nexus, has not been satisfied, and the Veteran's claim fails on this basis. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hepatitis C. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs