Citation Nr: 1301074 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 07-10 262A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hepatitis. 2. Entitlement to service connection for infertility (claimed as sexual dysfunction). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. A January 2009 rating decision determined that new and material had not been received to reopen the claims for service connection infertility (claimed as sexual dysfunction) and hepatitis. However, as the Veteran submitted a notice of disagreement with May 2005 rating decision in February 2006, and timely perfected his appeal in April 2007, the matter will be addressed on the merits in the decision below. On his February 2009 Form 9, the Veteran requested a Board hearing at the local RO (Travel Board), however, in August 2011 correspondence, he withdrew his hearing request. In February 2012, the Board remanded the claim to obtain outstanding treatment records and available service treatment records (STRs), as well as to provide the Veteran with appropriate VA examinations. As development has been completed, the matters are once again before the Board. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's hepatitis is the result of a disease or injury in active duty service. 2. The preponderance of the evidence is against a finding that the Veteran currently suffers from infertility that is the result of a disease or injury in active duty service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hepatitis have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for establishing service connection for infertility have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). March 2005 pre-adjudication letters notified the Veteran of the evidence needed to substantiate his claims for service connection. This letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). In the instant case, the appellant was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the Veteran's claims. In February 2012, the Board remanded the Veteran's claim to obtain additional service treatment records (STRs) and VA treatment records as well as to provide the Veteran with an appropriate VA examination. In April 2012, VA requested copies of complete STRs, to include records from Fort Meade and Kimbrough Ambulatory Care Center. In April 2012, VA received notice that Kimbrough Ambulatory Care Center had no information regarding the Veteran. In July 2012 correspondence, the Veteran was notified that VA was unable to obtain his STRs from Fort Meade and that VA attempted to obtain such records from Kimbrough Ambulatory Care Center. He was advised to submit such records if they were in his possession. He was notified of the types of documents that could be substituted for STRS. In a July 2012, response, the Veteran stated that VA had all of his records. A Memorandum of Unavailability of Federal Records was issued in July 2012. In the October 2012 supplemental statement of the case, the Veteran was again advised that alleged additional STRs were not found. Thus, the claims file indicates that the alleged outstanding STRs are not obtainable and that further efforts to procure those records would be futile. Consequently, remand to obtain the missing treatment records is not required as it would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See 38 C.F.R. § 3.159; Bernard v. Brown, 4 Vet. App. 384 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Additional VA treatment records were obtained and uploaded into the Veteran's Virtual eFolder and considered in an October 2012 supplemental statement of the case (SSOC) The Veteran was provided with a VA examination in March 2011. The examination is adequate for the purposes of adjudication as it was conducted by qualified healthcare provider based upon review of the claims file, interviews with the Veteran, and clinical findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As VA obtained all of the available STRs and identified VA treatment records, as well as provided the Veteran with an adequate VA examination, there has been substantial compliance with the instructions in the February 2012 Board Remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b) , an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-497 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. Savage, supra. see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit 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 professional." 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"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, at 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra. (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"). 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). 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Analysis A. Hepatitis The Veteran claims that he contracted hepatitis while in service. The available service treatment records include December 1968 and 1970 entrance reports of medical examination and history that were negative for any complaints, treatment, or diagnoses related to hepatitis or other liver disease. The December 1968 and 1970 clinical evaluations of the Veteran's abdomen and viscera were normal. Post service treatment records include treatment records from Tennessee Valley Healthcare System-Alvin C. York (Murfreesboro) Campus and Chattanooga Community-Based Outpatient Clinic (CBOC) dated from October 2004 to September 2012. An October 2004 record noted the Veteran's reports of having hepatitis more than a couple of times, although he indicated that he did not know the type of hepatitis. He reported a history of being a heroin addict many years ago. In March 2006, he was assessed as a hepatitis C carrier. In an August 2006 statement, the Veteran's mother reported that she visited her son while he had hepatitis at Fort Meade. She remembered him being very sick and weak, and appeared "yellow". She indicated that the Veteran still had problems with his liver during flare-ups. In August 2008, the Veteran completed a VA questionnaire regarding risk factors for hepatitis. He denied using intravenous drugs or intranasal cocaine, as well as ever engaging in high-risk sexual activity, undergoing hemodialysis, sharing toothbrushes or razorblades, having acupuncture with non-sterile needles, having a blood transfusion or being a healthcare worker exposed to contaminated blood or fluids. However, he claimed that he did have tattoos or body piercings in 2007. On March 2011 VA examination, the examiner opined that the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there was no medical record of the Veteran being treated for hepatitis while in the service. The examiner opined that the Veteran most likely contracted the hepatitis after leaving the service, due to his IV drug abuse, which is a common cause of hepatitis. The examiner noted that the Veteran, himself, reported that he had an episode of hepatitis after service for which he did not seek medical treatment. The examiner also opined that it was not likely that he contracted it sexually as this was an uncommon cause, despite being treated in service for a sexually transmitted disease (STD), i.e. gonorrhea. The Board finds that the March 2011 VA medical opinion is probative, as it was predicated upon a thorough, accurate review of the record and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board acknowledges the Veteran's belief that his hepatitis is related to his active service. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to the passage of time and the Veteran's reports of intravenous drug use, and having a post service episode of hepatitis for which he never sought treatment, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. While the file lacks competent evidence relating hepatitis to active service, the Board notes that service connection could still be established on a direct basis upon a showing of continuity of symptomatology. On this point, the Board finds it significant that the first post service evidence of hepatitis is noted in an October 2004 VA treatment record many years after service, so there is no supporting medical evidence of a continuity of pertinent symptomatology. In this regard, a lengthy period without evidence of treatment may also be viewed as evidence weighing against the Veteran's claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000). The Board acknowledges that the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Indeed, the Veteran's own statements or those of his mother that his lay-observable symptomatology has been continuous can overcome an absence of medical evidence showing such continuity. In this case, however, the Veteran has not provided any lay evidence of pertinent symptomatology. For the most part, he has just provided conclusory statements indicating that his hepatitis was related to service or that he was treated for hepatitis in service. Nevertheless, in an August 2008 statement, the Veteran's mother reported that she visited her son while he was at Fort Meade while he had hepatitis and that he still had problems with his liver during flare-ups. However, this assertion is contradicted by the other evidence of record. There is no documentation of flare-ups or any other symptoms associated with the Veteran's hepatitis, nor have any symptoms been alleged by the Veteran. The Veteran did not raise a claim of service connection for hepatitis until January 2005, approximately 35 years after his discharge from service. If he had been experiencing continuous symptoms, it is reasonable to expect that he would have filed a claim sooner. His failure to do so, suggests that he was not bothered by such symptoms. For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran or his mother's own statements. In sum, the preponderance of the evidence weighs against a finding that the Veteran's hepatitis developed in service or is due to any event or injury in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). B. Infertility The Veteran contends that while he was stationed in Korea he was diagnosed with gonorrhea. However, a few months later, he was treated at Fort Meade and told that he actually had syphilis, which made him "sterile". Service treatment records include December 1968 entrance reports of medical examination and history that were negative for any complaints, treatment, or diagnoses related to infertility or sexual dysfunction. A clinical evaluation of the genitourinary system (G-U) during the December 1968 examination was normal. In July1969, a gonorrhea culture came back positive. In December 1969, he was treated for a second case of gonorrhea. A December 1970 report of medical examination revealed that the G-U system was normal and a report of medical history did not suggest any related problems. Post service treatment records include treatment records from Tennessee Valley Healthcare System-Alvin C. York (Murfreesboro) Campus and Chattanooga CBOC dated from October 2004 to September 2012. An October 2004 record noted the Veteran's reports of having "gonorrhea and probably also syphilis while on active duty overseas," which made him "sterile". On March 2011 VA examination, a physical examination of the penis, testis, and epididymis was normal. A diagnosis of infertility was not shown. While the Board acknowledges that the Veteran had current complaints of infertility, in the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); See also Degmetich, supra (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). The Veteran has not identified any specific current symptoms, but rather claims that he is infertile. With respect to whether the Veteran's own testimony can establish a current disability here, as previously mentioned, in Jandreau, supra, the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. In this case, the criteria under Jandreau have not been met. The Veteran's claim for infertility is inconsistent with the other evidence of record that is negative for a current disability. Also, there have been no reports of, and the evidence does not reflect, a continuity of symptomatology. The Board has considered the Veteran's reports of being infertile, however, on March 2011 VA examination no penis, testes, or epididymis abnormalities were found. The examiner noted that the Veteran had never actually been diagnosed with infertility, but rather he was told that he would be "sterile". Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Accordingly, the preponderance of the evidence is against the Veteran's claim for infertility and it must be denied. Gilbert, 1 Vet. App. 49, 55 (1990). Furthermore, on March 2011 VA examination, the examiner opined that the claimed condition was less than likely than not (less than a 50 percent probability) incurred in or caused by an in-service injury event, or illness. The examiner reasoned that the Veteran has never actually been diagnosed with infertility. The examiner noted the Veteran's reports of being sterile as a result of syphilis, which was misdiagnosed as gonorrhea. The examiner found that regardless of whether the Veteran had gonorrhea or syphilis, neither of these illnesses causes infertility if treated. Here, the Veteran was treated in service and had no evidence of further need for additional treatment thereafter. Also, treatment for these conditions is the same. The examiner opined that even if the Veteran was infertile, a more likely reason would be due to his occupation as a painter due to lead and organic solvent exposure. Finally, the examiner reported that there was no medical record of the Veteran being diagnosed with syphilis or being told that he would be sterile. The Board finds that there is no competent medical evidence to the contrary. The Board finds that the March 2011 VA medical opinion is probative, as it was predicated upon a thorough, accurate review of the record and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Therefore a preponderance of the evidence is against this claim. 38 U.S.C.A. § 5107(b). The benefit-of-the-doubt rule is thus not for application. Service connection for infertility is denied. 38 C.F.R. § 3.303; Brammer, supra.; McClain, supra. ORDER Service connection for hepatitis is denied. Service connection for infertility is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs