Citation Nr: 1234003	
Decision Date: 09/28/12    Archive Date: 10/09/12

DOCKET NO. 09-31 602	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to service connection for hepatitis C.

2. Entitlement to service connection for bilateral hearing loss.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Schechter, Counsel 



INTRODUCTION

The Veteran served on active military duty from July 1972 to August 1973. 

The appeal comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 

The Board remanded the claim in January 2011 for additional development, and it thereafter returned for further review. The Board in May 2012 requested a Veterans Health Administration (VHA) medical opinion addressing his claimed hepatitis C. That opinion having been obtained, the case is now before the Board for review once again. 


FINDINGS OF FACT

1. The Veteran entered service in sound condition with regard to hepatitis C, with hepatitis C not noted on service entry. 

2. The evidence preponderates against the Veteran having been infected with hepatitis C during active service. 

3. The evidence preponderates against the Veteran having developed hepatitis C during active service. 

4. The evidence preponderates against the Veteran having hearing loss disability in either ear. 


CONCLUSIONS OF LAW

1. The criteria for service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2011).

2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.385 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2011). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative (however, the Veteran in this case is pro se, or representing himself) of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant 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). This notice must be provided prior to an initial 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). In addition, the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. 

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Supplemental Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, nor, as discussed herein, has the Board identified any. 

VA has fulfilled the above requirements in this case for the claims for service connection for hepatitis C and bilateral hearing loss. A VCAA notice letter was sent in April 2009. This letter addressed the claims adjudicated herein, prior to the RO's initial adjudication of the claims by the appealed June 2009 decision. The Board finds that this VCAA letter adequately addressed the evidence required to support the claims. 

The VCAA letter informed the Veteran of the notice and duty-to-assist provisions of the VCAA, of the bases of review, and of the information and evidence necessary to substantiate the claims. He was also told by this letter that it was ultimately his responsibility to see that pertinent evidence not in Federal possession is obtained. The VCAA letter also provided Dingess-type notice as to potential downstream issues of disability rating and effective date. To whatever extent Dingess-type notice may have been deficient in this case, such deficiency would be harmless and moot, because the claims for service connection herein adjudicated are herein denied. 

The VCAA letter also requested that the Veteran advise of any VA and private medical sources of evidence pertinent to his claims, and that he provide necessary authorization to obtain those records. It also requested evidence and information about treatment after service, in support of the claims. Based on information provided by the Veteran, post-service treatment records were obtained from VA sources. The Veteran also submitted some medical informational documents as well as private audiometric test records. Medical records from indicated sources were sought, and all records received were associated with the claims file. Significant quantities of VA and private records were already previously obtained and associated with the claims file. 
 
The Veteran was appropriately informed of records obtained, including by the appealed rating decision and by an SOC. He was also provided in July 2012 notice and a copy of the VHA medical opinion obtained in May 2012, and afforded the appropriate opportunity to respond. He was thus, by implication or explicitly, also informed of records not obtained. He was also adequately informed of the importance of obtaining all relevant records, and of his ultimate responsibility to see that records are obtained in furtherance of his claims. In the absence of any report or indication of additional records not yet obtained relevant to the appealed claims, VA need not assist the Veteran in soliciting any additional records and need not seek to obtain any for association with the claims file prior to the Board's adjudication of the claims adjudicated herein. 

As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when a veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the veteran indicates that the claimed disability or symptoms may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

In this case, the Veteran was afforded an official examination for VA compensation purposes in May 2009 addressing his claimed hearing loss. As discussed infra, both the findings upon this examination and upon private audiometric testing in August 2008 reveal hearing acuity in each ear not considered a disability pursuant to applicable VA criteria within 38 C.F.R. § 3.385. There is thus presented no reasonable possibility that a nexus opinion is warranted, in the absence, as discussed infra, of competent evidence of current hearing loss disability as defined within 38 C.F.R. § 3.385. 38 C.F.R. § 3.159(c)(4); McLendon. 

Regarding the hepatitis C claim, a May 2012 VHA opinion letter was obtained adequately addressing the medical questions of etiology including as related to service, thereby obviating any need for a VA examination under 38 C.F.R. § 3.159(c)(4). Thus, there is presented no reasonable possibility that a further medical examination or medical opinion would enhance the present evidentiary status for either of the Veteran's appealed claims.

The obtained medical reports - the May 2009 official hearing loss examination and the May 2012 VHA opinion - sufficiently addressed, to the extent required for the Board's adjudication, the medical questions of diagnosis or causation as raised in this case for the Veteran's claimed hepatitis C and bilateral hearing loss. The examiners supported their conclusions with analysis (to the extent necessary) based on relevant evidence presented in this case, to include based on review of the record, inclusive past examination and clinical findings and lay statements. Ultimately, the hearing loss examination findings of normal hearing in each ear are not dependent on past medical history or past medical findings; it is sufficient that these findings are sufficiently consistent with other audiology and audiometric findings of record, which they are. Similarly, the VHA opinion obtained did not require examination of the Veteran, because relevant facts were established by the Veteran's assertions and the evidentiary record. These medical reports with their relevant findings, analysis, and conclusions, in turn allow for the Board's adjudication inclusive of a weighing of these examination/VHA reports and their findings and conclusions against contrary evidence. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board further finds that this May 2009 examination and this May 2012 VHA opinion letter, taken together with the balance of medical and non-medical evidence of record, provide sufficient detail and sufficient medical evidence and findings to allow for appropriate Board adjudication of the claims on appeal adjudicated herein. 38 C.F.R. § 4.2 (2011); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 

No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims adjudicated herein. 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); see also Quartuccio v. Principi, supra. 

Any VA development assistance duty under the VCAA to seek to obtain indicated pertinent records has been fulfilled. The Veteran has not presented any avenues of evidentiary development presenting a reasonable possibility of furthering the claims which the RO or AMC has not pursued by query. Hence, the case presents no reasonable possibility that additional evidentiary requests would further the claims being decided herein. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159. 

The Veteran has addressed his claims by submitted statements and testimony before the undersigned Veterans Law Judge at a June 2010 hearing. There has been no expressed indication that the Veteran desires a further opportunity to address his claims adjudicated herein. 

The Board also finds that the development required by the Board's January 2011 remand and April 2012 VHA opinion request pertinent the claims currently on appeal have been substantially fulfilled. This included issuance of a SOC, and obtaining a VHA opinion addressing questions of hepatitis C etiology. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). 

In summary, in this case, with regard to the service connection claims herein adjudicated, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the service connection claims at issue on appeal. See ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). 

In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the Veteran's claims on appeal herein adjudicated have been accomplished. 

II. General Laws and Regulations Governing Claims for Service Connection

Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009 & Supp. 2011); 38 C.F.R. § 3.303 (2011). 

With a chronic disease shown as such in service, 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) . 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. 

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) . Service connection may also 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) . A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993).

While medical evidence may be required to address questions of diagnosis or causation specifically requiring medical expertise, 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 which may reasonably be observed by laypersons. See 38 C.F.R. § 3.303(a) ; Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). 

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Additionally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). 



III. Pertinent Laws Governing Pre-Existing Conditions and the 
Presumption of Soundness

Every veteran who served in the active military, naval, or air service after December 31, 1946, shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003); 70 Fed. Reg. 23 ,027 (May 4, 2005). If the presumption of soundness is not rebutted, the claim becomes one for service connection, meaning that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).


IV. Claim for Service Connection for Hepatitis C

The Veteran contends that he contracted hepatitis C in service. At his hearing before the undersigned he addressed possible sources of exposure to hepatitis C both in service and out of service. He asserted that he may have been exposed to hepatitis C when injection guns were used to inoculate him without proper sterilization to prevent being infected from others who were also being inoculated. The Veteran also conceded at the hearing that he was potentially exposed to hepatitis C prior to service as a teenager when he received tattoos without use of sterile needles. He further conceded that he might have been exposed to hepatitis C post service when he had used intravenous recreational drugs with shared needles on one or two occasions, and when he had ingested cocaine on a few occasions. The Veteran did not contend that he received tattoos or used intravenous drugs or snorted cocaine while in service.

The Board in May 2012 obtained a Veterans Health Administration (VHA) medical opinion by a VA physician specializing or practicing in the field of infectious diseases, to address the relative likelihood of the Veteran's contracting hepatitis C during his asserted exposure to jet gun inoculation in service versus by the above-noted conceded tattooing prior to service and drug use following service. The physician noted that jet gun injection was not a recognized means of transmission of hepatitis C, and the physician concluded that it was "highly unlikely" that the Veteran contracted hepatitis C by this means. The physician further observed that hepatitis C "can be efficiently transmitted" both by tattoos administered in a non-sterile manner and by use of intravenous drugs using shared needles, without regard to the number of times this was done. The physician then concluded that it was "highly likely" that the Veteran contracted hepatitis C by activities unrelated to service. 

The Veteran, as a layperson, is not competent to address the distinctly medical question of the likelihood that he contracted hepatitis C by jet gun inoculation in service versus by other means inclusive of tattooing or by shared needle use. Jandreau. The infectious disease specialist who provided opinions in May 2012, by contrast, is competent to provide such opinions. Id. The Veteran has not provided contrary medical evidence to support the proposition that he contracted hepatitis C by jet gun injection in service rather than by tattoos or intravenous drug use with shared needles not in service. The evidentiary record also does not contain evidence that the Veteran was symptomatic of hepatitis C either in service or for years following service. The Board accordingly concludes that the preponderance of the evidence is against the Veteran having contracted hepatitis C during service, with the evidence preponderating against the Veteran having been infected or having developed active hepatitis C in service, and hence service connection on a direct basis is not warranted. 38 C.F.R. § 3.303. 

Because hepatitis C was not noted upon service entrance and there is insufficient evidence to overcome the presumption of soundness, the Veteran is presumed to have entered service without hepatitis C. 38 U.S.C.A. § 1111. 

Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


V. Claim for Service Connection for Bilateral Hearing Loss.

The Veteran contends that he has hearing loss related to in-service noise exposure when firing guns. 

The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2011).

The Veteran asserted at his official examination in May 2009 that he worked at a firing range in service. He also testified at his hearing before the undersigned that he enjoys going to music concerts and has noise exposure, with ringing in his ears afterwards, from going to such concerts. Thus, the Veteran's own statements present evidence of excess noise exposure both in service and not in service potentially causative of hearing loss. However, such considerations are ultimately immaterial in this case because hearing loss examination has not shown that the Veteran meets the schedular criteria for hearing loss disability pursuant to 38 C.F.R. § 3.385. 

While the Board recognizes the Veteran's lay perception of current hearing loss, ultimately the question of whether he meets schedular criteria must be answered by clinical testing because these criteria are defined by clinical findings. Thus, the Veteran's lay assertions, even while credible, ultimately cannot outweigh the current clinical findings to the effect that the Veteran does not meet the schedular criteria for hearing loss disability in either ear. Rather, the Veteran's assertions are not competent to establish the presence of hearing loss disability for VA purposes as defined within 38 C.F.R. § 3.385. Jandreau.

Upon official authorized audiological examination for VA rating purposes in May 2009, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Average
1000 - 4000
RIGHT
15
15
20
25
35
24
LEFT
15
15
15
20
20
18

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The examiner assessed normal hearing in both ears, while at once noting that the Veteran had tinnitus in the right ear. 

These findings are reasonably consistent with those obtained upon private audiometric testing in August 2008, with that report also of record. Upon that audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
Average
1000 - 4000
RIGHT
10
10
15
10
30
16
LEFT
5
5
15
5
15
10


The above VA and private examination findings reflect that the Veteran does not meet the schedular criteria under 38 C.F.R. § 3.385 for hearing loss in either ear. The Veteran has not presented any competent evidence to support the presence of 38 C.F.R. § 3.385 defined hearing loss disability in either ear, and the preponderance of the evidence is thus against current hearing loss disability in either ear. Accordingly, the evidence preponderates against service connection for hearing loss on that basis. 38 C.F.R. §§ 3.303, 3.385.
 
In the absence of evidence of sensorineural hearing loss within the first post-service year and with the weight of the evidence also against current hearing loss disability, service connection for hearing loss on a first-year-post-service presumptive basis is also not warranted. 38 C.F.R. §§ 3.385, 3.307, 3.309. 

The preponderance of the evidence is against the claim, and, therefore, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert.


ORDER

Service connection for hepatitis C is denied.

Service connection for bilateral hearing loss is denied.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs