Citation Nr: 1342950 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-00 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and friend (L.H.) ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1961 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2012. A transcript of the proceeding is associated with the claims file. The Board remanded the Veteran's appeal in January 2013. The Board finds that the remand directives have been completed and, therefore, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record with the Veteran's submission of a VA Form 21-8940 in April 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Hepatitis C did not manifest in service or for many years after service; hepatitis C has not been shown to be the result of disease or injury incurred during service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and 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, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided a VCAA notice letter to the Veteran in September 2007. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The VA also assisted with the development of the Veteran's claim including associating the Veteran's service treatment records, VA treatment records and private treatment records with the claims file. To date, neither the Veteran nor his representative has identified any outstanding evidence. VCAA also requires VA to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The claim was remanded in January 2013 to obtain a medical opinion upon review of the claims file. The Board finds that, although the examiner could not state an opinion without resorting to speculation, the Board can make a fully informed decision based on the evidence of record and a further remand would not benefit the Veteran. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Service Connection The Veteran alleges that he acquired hepatitis C from jet injectors used for inoculations during his period of service. He also notes other service experiences that put him in contact with blood, such as undergoing eye surgery and dental work, as well as exposure in his job as a military policeman. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board notes that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, he or she is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, the Veteran is not competent to render an opinion about the etiology of his hepatitis C because that requires medical study and experience with the nature of the disease.. Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). In general, for service connection to be granted for hepatitis C, the evidence must show that a veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in service. The evidence must further show a relationship between the claimed in-service injury and the Veteran's hepatitis C. Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02) (April 17, 2001). A VA Fast Letter issued in June 2004 (FL 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). It was also noted that transmission of hepatitis C virus with jet injectors was "biologically plausible", despite the lack of any scientific evidence so documenting. The Veteran's service treatment records (STRs) are silent as to any findings, complaints, or diagnosis of hepatitis C. As to possible in-service risk factors, it is likely the Veteran received inoculations by jet injector. In addition, the Veteran is found to be credible with regard to his assertions of in-service eye surgery and dental work, as each are clearly documented in his STRs. Given his documented in-service specialty as a military policemen, his claimed history of exposure to blood and casualties during service is also found to be credible. A post-service private treatment record indicates the Veteran was diagnosed with hepatitis C in 2001, over 30 years after separation from service. At that examination, the Veteran indicated that in the past, he had blood transfusions and unprotected sex. In a September 2007 VA treatment record, the Veteran denied having blood transfusions and stated his two tattoos were acquired after his diagnosis of hepatitis C. However, on an October 2007 Risk Factors for Hepatitis Questionnaire, the Veteran indicated he had three tattoos, one of which was acquired prior to his diagnosis in 1994. Also on the questionnaire, he indicated he had never used intravenous drugs, intranasal cocaine, had hemodialysis, engaged in high-risk sexual activity, shared toothbrushes or razor blades, had acupuncture with non-sterile needle or had a blood transfusion. As to the post-service risk factors, the Veteran's assertions are contradictory regarding unprotected sex, the dates he acquired his tattoos, and whether or not he had undergone a blood transfusion. When weighing the probative value of the evidence, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In an April 2008 VA medical opinion, a VA physician reviewed the claims file and consulted with another physician. Thereafter, he opined that it was less likely than not that the Veteran's hepatitis C was due to his in-service immunizations and more likely due to other listed factors, to include the reported blood transfusion, unprotected sex, the reported tattoo acquired prior to the 2001 diagnosis and alcohol abuse. In January 2013, the Board remanded the claim to obtain any outstanding treatment records and to request another VA medical opinion as to the likely etiology of the Veteran's hepatitis C. In April 2013, the VA examiner reviewed the claims file and indicated it was not possible to determine precisely which risk factor contributed to the causation of the Veteran's hepatitis C without resorting to mere speculation. The examiner summarized the medical evidence in detail by date. She noted the Veteran's reported risk factors in-service including jet injector inoculations, exposure to blood from causalities as a military policeman, eye surgery and dental work. She noted evidence of post-service tattoos, alcohol use and unprotected sex. She reviewed VBA Training Letter 211A (01-02) and BVA Fast Letter 04-13, internet evidence submitted by the Veteran and the medical findings in the treatment records. She opined: "I cannot say without resorting to mere speculation because there are multiple factors increasing the risk of Hep. C. in this veteran and it is not possible to determine the precise percentage each risk factor plays in the overall condition of Hepatitis". The Board recognizes that when an examiner is asked to render an etiology opinion and determines that she cannot do so without resorting to speculation, the Board may not rely on such an opinion unless the record in its entirety-including the examination and the opinion itself-shows that "the examiner [did] not invoke[ ] the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts." Jones v. Shinseki, 23 Vet. App. 382 (2010). In other words, "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id. at 389. "Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must be otherwise apparent in the Board's review of the evidence." Id. at 390. Here, upon review of the evidence, the Board finds the examiner's resort to speculation justified. Several possibilities for the cause of the Veteran's hepatitis C appear in the record. The examiner's rationale as to why she could only speculate was centered on the presence of post-service risk factors. The Board finds that the examiner considered all relevant medical information that might have allowed her to render a non-speculative opinion. The Board cannot ignore the examiner's speculation and come to its own conclusion regarding the etiology of the Veteran's hepatitis C. Indeed, the Board cannot make its own independent medical determinations and is prohibited from exercising independent judgment to resolve medical questions. Id.; see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board acknowledges the Veteran's sincere belief that his hepatitis C is related to service. However, medical opinions that are speculative or inconclusive in nature cannot support a claim for entitlement to service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). As there is no competent medical opinion that raises at least a 50 percent probability that the Veteran's hepatitis C is related to service as opposed to some other post-service risk factor, the Board must find that the third element required for service connection, a causal relationship between the Veteran's service and hepatitis C, has not been established. The Board recognizes the submission by the Veteran of prior Board decisions that found in the veteran's favor based on inoculations by jet air injector in service. Board opinions are non-precedential, and the decision as to one appellant can have no precedential weight in the decision for a different veteran. 38 C.F.R. § 20.1303. The evidence in those cases had at least one positive medical opinion providing a medical link between the veteran's hepatitis C and service so that the evidence was in relative equipoise or there existed a lack of post-service risk factors. That is not the case here. The Board also concedes that VA has indicated that transmission of hepatitis C by jet air injector is "biologically plausible". However, each case depends on its facts and such a biological link cannot be assumed in every case without supporting medical evidence relevant to that veteran's particular claim. Based on a careful review of the record, the etiology of the Veteran's hepatitis C could not be determined to a reasonable degree of certainty based on the evidence and therefore service connection for hepatitis C cannot be granted. Because the preponderance of the evidence does not support the claim, the benefit of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs