Citation Nr: 1626953 Decision Date: 07/06/16 Archive Date: 07/14/16 DOCKET NO. 13-06 476A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In February 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issue on appeal and engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. In June 2015, the Board remanded the appeal to the RO for additional development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for an acquired psychiatric disorder was also remanded by the Board in June 2015. In a November 2015 rating decision, following development conducted pursuant to the Board's remand, the RO granted service connection for an acquired psychiatric disorder. As this issue has been fully granted, the issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran has a disability manifested by hepatitis C. 2. The Veteran's hepatitis C did not manifest during service and is not otherwise etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). 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). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided notice to the Veteran in October 2011, prior to the initial adjudication of the claim in April 2012. The RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim of service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The October 2011 notice letter also addressed the rating criteria and effective date provisions that are pertinent to the Veteran's claim. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file include service treatment records, post-service VA treatment records, VA examination reports from March 2012 and November 2015, and the Veteran's statements, including his testimony at the February 2015 Board hearing. The Veteran was afforded VA examination in March 2012 and November 2015. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide an examination, it must ensure that the examination performed and opinions provided are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Taken together, the VA examinations are adequate to adjudicate the appeal. The medical opinion evidence considered all the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or medical opinion has been met. 38 C.F.R. § 3.159(c)(4). Monzingo v Shinseki, 26 Vet. App. 97 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion"). VA has therefore satisfied its duties to notify and assist and the Board may proceed with appellate review. Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). 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). "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Hepatitis C The Veteran contends that service connection is warranted for hepatitis C. Specifically, the Veteran contends that he experienced hepatitis during service that either was hepatitis C or led to his current diagnosis of hepatitis C. The Veteran has a current disability manifested by hepatitis C. VA treatment records document that the Veteran was diagnosed with hepatitis C in May 2007. The diagnosis of hepatitis C was confirmed by the May 2012 and November 2015 VA examiners. The November 2015 VA examiner noted current symptoms of anorexia and weight loss. After a review of all the lay and medical evidence, however, the preponderance of the evidence is against a finding that the Veteran's hepatitis C manifested during service or is otherwise etiologically related to service. In July 1970, the Veteran reported a one week's duration of loss of appetite, fatigue, malaise, and yellowing of the eyes. The Veteran reported having recently returned from Vietnam where he had drank unpotable water on several occasions. At that time, the Veteran was hospitalized with abnormal liver function tests and was diagnosed with infectious hepatitis. The Veteran was hospitalized for three weeks, and then was placed on limited duty for two additional weeks. The July 1971 service separation examination report reflects no indication of current symptoms of, a diagnosis of, or treatment for hepatitis. However, in the accompanying Report of Medical History form, the Veteran endorsed a history of jaundice and the service physician noted a history of hepatitis. A November 2007 VA treatment record reflects that the Veteran was diagnosed with hepatitis C in May 2007. The Veteran denied risk factors of intravenous drug use, blood transfusion, or being imprisoned. Additional VA treatment records note that the Veteran reported a remote use of cocaine using shared straws. See e.g., May 2012 Hepatitis Clinic Treatment Record. Upon VA examination in March 2012, the VA examiner noted that the Veteran has a current diagnosis of hepatitis C. The VA examiner also indicated that the Veteran was diagnosed with infectious hepatitis during service, but it was unclear which specific type of hepatitis was diagnosed (hepatitis A, hepatitis B, or hepatitis C). Following examination, the VA examiner indicated that she was unable to provide a medical opinion without resorting to speculation because specific tests were not performed during service to differentiate between the different types of hepatitis. In the March 2013 Substantive Appeal (VA Form 9), the Veteran indicated that he was diagnosed with infectious hepatitis during service and was currently diagnosed with hepatitis C. The Veteran further indicated that he served in Vietnam and drank water that could have caused his current hepatitis C. During the February 2015 Board hearing, the Veteran testified that he had infectious hepatitis in service and has a current diagnosis of hepatitis C. The Veteran testified regarding several theories of a relationship between his current hepatitis C and his service. First, that the infectious hepatitis was actually hepatitis C. Second, that the infectious hepatitis led to or became hepatitis C. Third, that the hepatitis C is the result of exposure to Agent Orange. Upon VA examination in November 2015, the VA examiner noted that the Veteran was diagnosed with hepatitis A in 1970 and hepatitis B and C in 2007. Following examination, the VA examiner opined that the Veteran's "hepatitis B and C were not caused by or in any way related to the hepatitis A [the Veteran] had in service." As rationale, the VA examiner explained that the types of hepatitis are three distinctly different viral diseases with different means of transmission: hepatitis A is contracted through contaminated food and water, while hepatitis B and C is contracted through blood. The VA examiner indicated that while the Veteran was diagnosed with infectious hepatitis during service, "it was most likely hepatitis A," which "can be contracted by consuming infected water." The VA examiner noted that service treatment record documenting the Veteran consuming 'nonpotable water' and indicated that the water "was the most likely source of infection of hepatitis in service." This conclusion led the VA examiner to opine that the Veteran likely had hepatitis A during service. The VA examiner further explained that as the three types of hepatitis are different entities, one type cannot lead to or transform into another type of hepatitis. Given the above, the preponderance of the evidence is against a finding that the Veteran's hepatitis C manifested during, or is otherwise related to, his active service. Service treatment records reflect that the Veteran developed infectious hepatitis, which was likely due to drinking contaminated water. The Veteran's contention is that the in-service episode of infectious hepatitis either was actually hepatitis C or that it led to his current diagnosis of hepatitis C. In contrast to the Veteran's contentions, the November 2015 VA examiner opined that the Veteran's in-service episode of infectious hepatitis was likely hepatitis A, which is transmitted through contaminated water, and not hepatitis C, which is transmitted through contaminated blood. The VA examiner further explained that the different types of hepatitis are distinct diseases and one type does not lead or transform into a different type. Accordingly, the VA examiner opined that the Veteran's hepatitis C, which was diagnosed in 2007, was "in no way related to the hepatitis A [the Veteran] had in service." The Veteran is competent to report symptoms that he perceives through his own senses. See Layno, 6 Vet. App. 465, 469. However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer an opinion as to the etiology of his hepatitis C due to the medical complexity of the matter involved. Hepatitis C requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and service. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The November 2015 VA examination report provides medical opinion evidence that weighs against the Veteran's claim. The opinion is competent and probative evidence. The VA examiner reviewed the claims file, interviewed the Veteran, performed an appropriate examination, and provided a medical opinion supported by well-reasoned rationale. There are no conflicting competent medical opinions of record. See also Hearing Transcript pp. 14-15. During the February 2015 Board hearing, the Veteran suggested that his hepatitis C may be due to Agent Orange exposure. The Veteran served in the Republic of Vietnam, and is therefore, presumed to have been exposed to Agent Orange. However, hepatitis C is not among those medical conditions for which presumptive service connection is warranted. 38 C.F.R. § 3.309(e). In addition, there is no medical evidence of record suggesting a link between the Veteran's hepatitis C and his presumed exposure to Agent Orange, and the Veteran is not competent to provide such an opinion. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert, 21 Vet. App. 456, 462. Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his hepatitis C, the Board finds that the hepatitis C is not etiologically related to service. See 38 U.S.C.A. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). The preponderance of the evidence is against the claim of service connection, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs