Citation Nr: 1223960 Decision Date: 07/11/12 Archive Date: 07/18/12 DOCKET NO. 09-45 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO denied service connection for hepatitis C. The Veteran requested a hearing at a local VA office before a member of the Board on his November 2009 VA Form 9 substantive appeal. By way of an October 2011 letter to VA, the Veteran cancelled his request for a hearing. The Board has considered the Veteran's Virtual VA file in the adjudication of this claim. The issues of entitlement to service connection for diabetes mellitus and chronic obstructive pulmonary disease (COPD) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran was first diagnosed with hepatitis C many years after discharge from service. 2. While in service, the Veteran had airgun inoculations, shared razors with other soldiers, and was exposed to other soldier's blood. 3. The preponderance of the evidence is against a finding that the Veteran's hepatitis C was the result of an in-service disease or injury. CONCLUSION OF LAW The criteria establishing service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in May 2008 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service personnel records, service treatment records, post-service reports of VA treatment and a January 2009 examination, and Social Security Administration disability records. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran has not completed a hepatitis C questionnaire, but VA treatment records indicate that on multiple occasions, treatment providers have addressed the risk factors for hepatitis C (including during at least one appointment, in August 2008, during the pendency of the Veteran's claim). Further, the Veteran has demonstrated through his claim and statements in support, actual knowledge of the risk factors for hepatitis C, including contaminated blood, intravenous drug use, and, as discussed in VBA Fast Letter 04-13, infra, the fact that it is "biologically plausible" to be infected with hepatitis C through airgun inoculations. Considering the Veteran's actual knowledge of hepatitis C risk factors, there is no prejudice to the Veteran in the fact that he was not provided a hepatitis C questionnaire to complete; he provided the same information to VA in other formats. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cirrhosis of the liver becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In evaluating a claim, 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 three-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, 21 Vet. App. at 310 (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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veterans Benefits Administration (VBA) has indicated that the risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a healthcare worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Fast Letter 98-110 (Nov. 30, 1998). The following guidance has been published for adjudicating hepatitis C (HVC) claims, which states in part as follows: • HCV is spread primarily by contact with blood and blood products. The highest prevalence of HCV infection is among those with repeated, direct percutaneous (through the skin) exposures to blood (e.g., injection drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and people with hemophilia who were treated with clotting factor concentrates before 1987). • Population studies suggest HVC can be sexually transmitted. However, the chance for sexual transmission of hepatitis C is well below comparable rates for HIV/AIDS or hepatitis B infection. . . . • The hepatitis B virus is heartier and more readily transmitted than hepatitis C. While there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an airgun transmission. • The source of infection is unknown in about 10 percent of acute HVC cases and in 30 percent of chronic HVC cases. These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications. CONCLUSION: The large majority of HVC infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HVC with airgun injectors, it is biologically plausible. It is essential that the report upon which the determination of service connection is made include a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the veteran's hepatitis C. VBA Fast Letter 04-13 (June 29, 2004). The Veteran's service treatment records are void of any diagnosis of hepatitis C, as such disease did not become a recognized diagnosis until 1989. See VBA Fast Letter 98-110. However, the service treatment records are also negative for any other type of hepatitis, or any other liver symptomatology. Those records, however, do demonstrate that the Veteran was vaccinated during service. Following discharge from service, the earliest noted treatment records in the claims file referable to hepatitis C are VA reports dated in May 2005. The Veteran has not identified any private treatment he may have had since discharge from service. The Veteran was diagnosed with hepatitis C in May 2005 following a liver biopsy. During treatment at the VA medical center in February 2006, the Veteran indicated that he was possibly exposed to someone else's blood while stationed in Korea. In a June 2008 statement, the Veteran reported that he was given airgun inoculations during service, and that the inoculation-providers did not change the needles in the airguns. He also asserted that while stationed at Fort Lewis, waiting for his transfer to South Korea, he was forced one time to shave with another soldier's razor, and that the cooking and kitchen patrol duties at Fort Lewis were done outside in a filthy environment. The Veteran was provided a VA examination in January 2009. He informed the examiner that he stopped drinking in January 1992, previously having drank two to five beers every two to three months. He denied having blood transfusions, multiple sexual partners, tattoos, repeated body piercings, hemodialysis, intranasal cocaine use, and intravenous drug use. The Veteran believed he was exposed to hepatitis C while in service by airgun inoculation and by using other soldiers' razors. He also indicated that he had occupational blood exposure during service. At the time of the examination, he was experiencing fatigue, malaise, weakness, right upper quadrant pain, and stated that he did not feel good all the time. His weight fluctuated. The Veteran was not receiving treatment for hepatitis C. The examiner opined that, "[a]s over 40 years have passed since military service and as air guns have not been shown to be a major risk factor for hepatitis C[,] in my opinion, the [V]eteran's hepatitis C is less likely as not caused by or is a result of his reported, possible in service exposures." In his April 2009 notice of disagreement (NOD), the Veteran stated that he had no other risk factors for hepatitis C, but on his November 2009 VA Form 9 formal appeal, he added that he used another soldier's razor to shave more than once, and shared drinking containers, cigarettes, and fingernail and toenail clippers with soldiers who were intravenous drug users. Analysis Because no objective medical evidence demonstrates compensable cirrhosis of the liver within one year of discharge from service (or at anytime thereafter), a grant of service connection on a presumptive basis for cirrhosis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Turning to the issue of service connection on a nonpresumptive basis, the Board initially notes that the Veteran is currently diagnosed with chronic hepatitis C. This was first diagnosed in May 2005. He has been treated by VA since that time for his hepatitis C. Thus, the first element of service connection has been met. The Board also finds that the second element of service connection, an in-service injury or event, has been met. There is competent, credible evidence of in-service risk factors for the disease. In this regard, the Veteran has provided various statements that while in service, he shared razors with other soldiers, received airgun inoculations, and was exposed to other soldier's blood. The Board finds, however, that there is no evidence in support of the Veteran's claim for the third prong of service connection - a nexus between the in-service event or injury, and the current diagnosis. Indeed, there is no competent medical evidence to suggest a nexus between the Veteran's in-service inoculations and blood exposure, and his current diagnosis. See Hickson, 12 Vet. App. at 253. The only competent medical evidence addressing the etiology of the Veteran's hepatitis C is the January 2009 examiner's negative opinion regarding a nexus to service. The Veteran's assertion to the contrary - i.e., that his hepatitis C was incurred in service - is not sufficient for purposes of providing a medical nexus. While he is competent to describe his factual observations of events that occurred during service (such as his various risk factors), he is not competent to attribute his current hepatitis C diagnosis to any of the risk factors that he experienced during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (holding that laypersons have are generally not competent to provide evidence in more complex medical situations). Again, the Veteran in this matter is not reporting symptomatology that can be later supported by a diagnosis from a medical professional, and there is also no suggestion that the Veteran is competent to diagnose his own condition. Rather, in asserting that his hepatitis C was caused by his in-service risk factors, he is providing an opinion that requires medical training. As such, his attribution of his hepatitis C to events that occurred during his service is not competent evidence for purposes of service connection. Id. In this case there is competent medical evidence - an opinion by a VA examiner - that the Veteran's hepatitis C is not attributable to his in-service risk factors. The examiner considered the Veteran's risk factors, and, having considered in his reasons and bases (a) the elapsed time between his service and diagnosis, and (b) the likelihood of transmission of the disease by airgun inoculations, opined that it was less likely than not that his hepatitis C was caused by or was otherwise a result of those risk factors. The examiner's opinion, supported by his reasons and bases, is credible and probative of the issue of causation. There are no medical opinions to the contrary. Without a medical nexus between the Veteran's hepatitis C and his military service, service connection is not warranted. There is also no evidence of continuity of symptomatology for the Veteran's hepatitic C disability. While continuity of symptomatology is not the only avenue to meet the medical nexus prong for service connection, the Board finds that no such evidence exists on which to grant service connection given the many years following discharge from service until the diagnosis of hepatitis C in May 2005. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim.). The Board acknowledges that the lack of contemporaneous medical records itself is not a basis for denying the claim. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Indeed, other evidence, including the Veteran's own lay statements, can overcome such gap in treatment, if those statements are competent and credible. In that regard, the Veteran has not asserted that he experienced hepatitis C symptomatology between the time of his military service in the 1960s and his 2005 diagnosis. In sum, service connection for Hepatitis C must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs