Citation Nr: 1615900	
Decision Date: 04/20/16    Archive Date: 04/26/16

DOCKET NO.  13-03 593A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan



THE ISSUE

Entitlement to service connection for hepatitis C.



REPRESENTATION

Appellant represented by:	Marine Corps League



ATTORNEY FOR THE BOARD

A. Barone, Counsel




INTRODUCTION

The appellant is a Veteran who served on active duty from February 1969 to August 1970.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

Hepatitis C was not manifested in service and is not shown to be related to any disease, injury, or event during service.


CONCLUSION OF LAW

Service connection for hepatitis C is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  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, 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met.  By correspondence in March and September 2010, VA notified the Veteran of the evidence and information needed to substantiate and complete his claim, of what information he was responsible for providing, of the evidence that VA would attempt to obtain on his behalf, and how VA assigns disability ratings and effective dates of awards.  The September 2010 notice additionally notified the Veteran of risk factors for hepatitis C recognized by the medical community and asked the Veteran to identify which risk factors applied to him; he has responded with statements identifying the manner in which he believes he contracted hepatitis C during his military service.  The Veteran has not alleged that notice in this case was less than adequate.  

The Veteran's service treatment records (STRs) are associated with the record, and pertinent private treatment records have been secured.  In January 2014 he was afforded a VA examination with a medical opinion addressing the medical questions raised by this claim; the report of which is adequate for appellate review.  VA's duty to assist is met.

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims.

Service connection may be granted for disability due to disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disability diagnosed after service when the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).  To substantiate a claim of service connection requires evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the claimed disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection is limited to those cases where disease or injury has resulted in a disability.  In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Lay evidence may be competent evidence to establish incurrence.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2).  Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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 (Fed. Cir. 2007).  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

At the outset, the Board notes that the Veteran's contentions in this case include his account of events during his participation in combat in Vietnam.  The Veteran has expressed concern that his account of events during combat may not have been accepted as verified by the RO in adjudicating this case.  On this point, the Veteran's February 2013 statement notes that the RO "infers that ... I was not in combat," and the Veteran asserts: "My Marine Corps specialty was mortarman, but I spent almost my whole tour in Vietnam as a 0311 rifleman (point man, tunnel rat).  I was awarded a Combat Action Ribbon and participated in three named Marine operations."  The Board has reviewed the Veteran's service records, including his DD Form 214, and notes that he is a decorated veteran of the Vietnam War who received a  Combat Action Ribbon.  The Board finds that the Veteran's service is shown to have included participation in combat with the enemy.

In the case of a veteran who engaged in combat with the enemy in active service during a period of war, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  38 U.S.C.A. § 1154(b) does not create a  presumption of service connection for a combat veteran's alleged disability; the appellant is still required to meet the evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which require competent evidence.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).
The Board finds that the Veteran's claim of service connection for hepatitis C must be denied because the evidence of record does not support finding that there is a nexus between his hepatitis C diagnosis and his active duty military service (and combat experiences).  He has described his belief that he has hepatitis C due to exposure of his own cut skin to blood of wounded soldiers during combat.  The Board accepts as factual his accounts of such events in combat.  Nevertheless, the question of whether he incurred hepatitis C as a result of such events is a medical question and the competent medical evidence of record does not support his theory of entitlement.

The Veteran's STRs are silent for any history, complaints, findings, treatment, or diagnosis of hepatitis C during active service.  They are also silent for any indication that he received a blood transfusion during service, nor is there any indication of any other apparent risk factor for hepatitis C documented in the STRs.  He does not contend that hepatitis C was diagnosed, or that HE experienced any symptoms of hepatitis C, during service or at any time prior to when signs of hepatitis were noted in blood testing during the 1990s.

The evidentiary record includes an August 1999 letter from a private gastroenterologist (Dr. DeLeone) documenting that the Veteran was "now found to have high liver enzymes" and that he "is hepatitis C RNA positive."  At that time, the Veteran had "absolutely no GI symptoms," and it was noted that he "takes Pravachol for high cholesterol."  The letter explains that the Veteran was "a gentleman who is asymptomatic" and "found to have high liver enzymes, and hepatitis C RNA is positive."

Notably, this August 1999 letter indicates that the authoring physician believed that the Veteran "received a blood transfusion .... a number of units of blood" during his military service.  On the basis of this understanding, the physician remarked: "Presumably, this is how he developed hepatitis C...."  The August 1999 physician's letter presents a conclusion that the Veteran "most likely contracted hepatitis C from a blood transfusion in Viet Nam," clearly relying upon the understanding that the Veteran received a blood transfusion during service.

The Veteran filed a claim of service connection for hepatitis C in February 2010.  In an October 2010 written statement, he explained that he believes he incurred hepatitis C during service "as a result of carrying wounded and dead comrades to Landing zones for medevac that were bleeding profusely from their wounds.  This was during times where I had open wounds on my arms and face as a result of moving through sharp elephant grass."  He explained that "[t]his occurred a number of times to include carrying dead enemy soldiers to a site for body counts and mass burial after firefights or ambushes."

In October 2010, the Veteran submitted a written statement presenting his account of hepatitis C risk factors in Vietnam, explaining that his recalled risk factor in service was repeated exposure to blood while carrying the wounded: "My risk factors for Hepatit[i]s 'C' are a result of carrying wounded and dead comrades to Landing zones for medevac that were bleeding profusely from their wounds."  The Veteran explained that"[t]his occurred a number of times to include carrying dead enemy soldiers to a site for body counts and mass burial after firefights or ambushes," and "during times where I had open wounds on my arms and face as a result of moving through sharp elephant grass."

On January 2014 VA examination in connection with this claim the examiner addressed the medical questions central to this case.  The January 2014 VA examiner explains: "There is no medical nexus establishing causality between 'carrying bodies in Vietnam' and hepatitis C."  The January 2014 VA examiner concluded that the "Veteran's hepatitis C is not caused by or a result of carrying bodies in Vietnam."

The January 2014 VA examination report documents that the Veteran told the examiner that when "he was diagnosed with 'hepatitis C' in the 1990s .... he had elevated liver enzymes," but that he "was taking medication for hyperlipidemia" and "when his medication for hyperlipidemia was changed, along with his diet and weight his liver enzymes have been normal."  The VA examiner noted that the Veteran "states that he declined a liver biopsy by his private physician" and that he "has never been treated for hepatitis C."  The VA examiner noted that the "Veteran denies any symptoms of hepatitis," and the medical assessment was "hepatitis C by history."  Notably, the January 2014 VA examination report documents that "Per veteran's own statement he does not recall having any blood transfusions in Vietnam," and the examiner reviewed the Veteran's service records to observe that "[m]edical records do not evidence any blood transfusions given in Vietnam."

Because the January 2014 VA examination report presents a competent medical opinion informed by review of the claims-file as well as examination and interview of the Veteran, the opinion is probative evidence in this matter.  As the VA examiner concludes that the Veteran's cited risk factor in service (exposure through his own cuts to the blood of the wounded as he carried them) is not a medically recognized factor in the transmission of hepatitis C, the competent medical opinion weighs against finding that hepatitis C was incurred during or due to the Veteran's military service.  There is no medical evidence of record that indicates that it is at least as likely as not that the Veteran was infected with hepatitis C as a result of blood exposure while carrying the wounded during service; as no competent evidence contradicts the January 2014 VA examiner's opinion in this regard, the January 2014 VA examiner's opinion is persuasive on this point.

The Board finds that the Veteran's description of exposure to blood from carrying the wounded is the only identified alleged risk factor for in-service hepatitis C incurrence in this case.  The Board acknowledges that the August 1999 medical statement reflects the authoring physician's understanding that the Veteran had received a blood transfusion during service.  The Veteran's STRs do not indicate the occurrence of the Veteran receiving any blood transfusion during service, and the Veteran's own statements during the presentation of this claim on appeal have indicated that his recollection of exposure to blood during service did not involve receiving a blood transfusion; the Veteran specifically denied receiving a blood transfusion during his January 2014 VA examination.  The Board finds that the Veteran did not receive a blood transfusion during service.  Hence, the Board finds that the August 1999 private medical opinion is based on an inaccurate factual predicate and should be assigned no probative weight.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value).

The Board has also considered the Veteran's statements asserting a nexus between his claimed current hepatitis C and his active duty service experiences.  He is not competent to provide a nexus opinion of this nature as he is a layperson; he is not shown to possess the specialized training necessary to address the complex medical matter of assessing the probability of hepatitis C  incurrence during the described events.  The Veteran does not cite to any supporting medical texts or treatises.  Competent evidence addressing the Veteran's theory of nexus has been provided by the January 2014 VA examiner (who examined the Veteran during the current appeal and provided a medical opinion weighing against the claim).  Notably, there is not competent evidence to the contrary, and the Board may not substitute its own opinion or judgement for what is in the record.

The Board observes that there is some ambiguity and uncertainty in the indications of record with regard to whether the Veteran has a medically confirmed diagnosis of hepatitis C during the pendency of the appeal.  However, the essential determination of the Board's determination in this case is that the competent medical evidence does not support a finding that any current diagnosis of hepatitis C (assuming the Veteran has a current diagnosis) may be linked to the Veteran's military service.

Service connection may be granted when the evidence establishes a nexus between active duty service and a current disability.  The preponderance of the evidence of record, featuring probative medical evidence, weighs against a finding of a relationship between the Veteran's claimed hepatitis C and his service.  The preponderance of the evidence is against this claim, and the appeal in this matter must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).







ORDER

Service connection for hepatitis C is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs