Citation Nr: 0809939 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-26 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a hepatitis C-related disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from September 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) from a July 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claim for service connection for a hepatitis C- related disability. FINDING OF FACT The veteran's diagnosed hepatitis C and alcohol-related cirrhosis first manifested many years after service and are not shown to be related to his service or to any incident therein. CONCLUSION OF LAW The veteran's current hepatitis C-related disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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. § 3.30(d). The veteran alleges that he was exposed to blood while transporting wounded soldiers in his helicopter. Service medical records are negative for complaints of or treatment for hepatitis C or any hepatitis C-related disability. There is also no evidence of the veteran being exposed to blood or blood products during service. Service personnel records show that the veteran's military occupational specialties were crew chief, aircraft mechanic, and repairman, and there is no evidence that he served in combat or worked in a situation where he would have been exposed to blood or blood products. On separation examination in June 1971, the veteran made no complaints regarding his liver, and his liver was found to have no abnormalities. Since the veteran was not diagnosed with a hepatitis C-related disability on separation, his liver was found to be within normal limits on separation, and there were no recorded complaints during a three-year period of service, the Board finds that the weight of the evidence demonstrates that chronicity in service is not established. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the veteran's claim for service connection for a hepatitis C-related disability. 38 C.F.R. § 3.303(b). The first post-service evidence of record of a hepatitis C- related disability is a December 2001 private medical report where the veteran was hospitalized for hematemesis. He was diagnosed with gastrointestinal bleed secondary to esophageal varices and cirrhosis secondary to alcohol and hepatitis C. The physician recommended alcohol rehabilitation and follow up for possible liver transplant. Private medical records dated from March 2002 to July 2002 and VA medical records dated from August 2002 to June 2003 show that the veteran received intermittent treatment for hepatitis C and alcohol-related cirrhosis. An August 2002 treatment record noted that the veteran's cirrhosis was secondary to alcohol and hepatitis C. At no time did any treating provider relate the veteran's hepatitis C-related disability to his period of active service. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds that the evidence is against a finding of a nexus between military service and the veteran's current hepatitis C and alcohol-related cirrhosis. There is no competent medical opinion of record relating the veteran's hepatitis C and alcohol-related cirrhosis to his service or any event in service. The veteran contends that his current hepatitis C and alcohol-related cirrhosis is related to his active service. However, as a layperson, he is not competent to relate his hepatitis C to his reported in-service exposure to blood products. Further, he is not competent to provide a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The veteran contends that the evidence shows continuity of symptoms after discharge and supports his claim for service connection. However, the first post-service evidence of the veteran's hepatitis C-related disability is in December 2001, approximately 30 years after his separation from service. In view of the lengthy period without treatment, there is no evidence of a continuity of symptomatology, and this weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the preponderance of the medical evidence weighs against a finding that the veteran's hepatitis C and alcohol-related cirrhosis developed in service or is due to any event or injury in service. The Board thus concludes that the hepatitis C-related disability was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim, service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in February 2003 and a rating decision in July 2003. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the June 2005 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has not obtained a medical examination in relation to this claim because there is no competent evidence that the appellant's diagnosed disorder is the result of any event, injury, or disease in service. See 38 C.F.R. § 3.159(c)(4) (2007). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for a hepatitis C-related disability is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs