Citation Nr: 0809984 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-19 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder, including residuals of vertebral fracture (claimed as broken back). 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from January 1970 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claims. In June 2007, the veteran testified at a personal hearing over which the undersigned Acting Veterans Law Judge presided while at the RO in St. Petersburg, Florida. A transcript of the hearing has been associated with the veteran's claims file. FINDINGS OF FACT 1. The veteran did not sustain a back injury or disease in service; did not have a chronic back symptoms in service; did not have continuous post-service symptom of back disorder; did not manifest was arthritis of the back to a compensable degree during the first post-service year; and the weight of the competent evidence demonstrates that the currently diagnosed degenerative arthritis of the spine is not related to active service. 2. The veteran's hepatitis C has not been shown to have been incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a back disorder are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. The criteria for the establishment of service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into four elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; (3) that VA will attempt to obtain; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). By letters dated in September 2003, January 2004, May 2005, and June 2006, the veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was, in essence, told to submit all relevant evidence he had in his possession. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the Dingess requirements, the claimant was provided with notice of the type of evidence necessary to establish a disability rating or effective date by the letter dated in June 2006. Adequate notice has been provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). In the present appeal, because the service connection claims are being denied, and no effective date or rating percentage will be assigned, the Board finds that there can be no possibility of any prejudice to the appellant under the holding in Dingess, supra. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The veteran's relevant service and VA medical treatment records have been obtained. He has been provided VA medical examinations. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304 (2007). In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2007). Service connection for arthritis and cirrhosis of the liver may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Service Connection for a Back Disorder In a Statement In Support Of Claim (VA Form 21-4138) dated in May 2005 and during the veteran's June 2007 Travel Board hearing, the veteran asserted that he injured his back in a fall from a 90 foot telephone pole during his period of active service in the Republic of Vietnam. He added that he had broken his back during the fall, but that he did not receive any treatment following the asserted injury. He also described that he developed a back disorder during service as a result of his duty unloading trucks full of ammunition. He indicated that he was treated by a private physician after service, but that he could not recall the name of the treating physician. He described experiencing continued back symptoms ever since. The veteran's service medical records are completely negative of any findings of a back injury or disease during active service. A separation report of medical examination dated in January 1972 shows that, upon clinical evaluation, the spine and other musculoskeletal system were normal. A report of medical history, also dated in January 1972 and completed by the veteran at the time of his separation from active service, shows that the veteran indicated that he had never had, and did not currently have, arthritis, rheumatism, or recurrent back pain. While he did indicate having had broken bones, the examiner elaborated that this was related to a fracture of the left clavicle and left elbow. The post-service evidence does not show a back disorder until many years after service separation. Subsequent to service, VA hospitalization report dated from November to December 1973 reflects that physical examination was unremarkable for a back disorder. The veteran filed VA claims for compensation after service in November 1973 and March 1974 for specific disabilities, but did not claim or mention a back disorder. He did not mention a back disorder to VA or to anyone else for treatment purposes until many years after service in 2003. VA outpatient treatment records dated from October 2003 to June 2005 show intermittent reports of symptoms associated with a back disorder. Assessments included back pain and degenerative joint disease of the spine. In December 2004, he indicated he had worked as a pipe welder for several years. In January 2005, he indicated that he had severe arthritis and multiple fractures due to being in numerous fights. He also noted that he had worked as a pipefitter for 20 years. A VA radiology report dated in December 2004 shows that studies of the veteran's back revealed degenerative changes of the spine, however, there was no evidence of a fracture identified. A VA general medical examination report dated in January 2005 shows that the veteran reported a history of back pain ever since falling from a pole during service, as described above. The diagnosis, in pertinent part, was back pain, most likely due to his degenerative joint disease; however, the cause of this was as likely as not related to his fall in Vietnam. The examiner noted that there were no definite trauma or fracture marks on X-ray studies. A VA spine examination report dated in January 2005 shows that the veteran reported a history of back pain ever since falling from a pole during service, as described above. He added that he had fallen on his feet, causing some injury to his back. He noted that he had not sought medical help at that time, but worked through it. The diagnosis was degenerative arthritis of the cervical and lumbar spines. The examiner opined that it was as likely as not that either of these injuries was related to his service time claims of injury. It was also noted that he had injuries to both outside of service time. During a VA gastro-intestinal examination conducted in January 2005, the veteran reported that, after service, he used to work as a pipe fitter for 20 years, and that this involved a lot of heavy lifting. After a review of the evidence, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a back disorder. The Board finds that the veteran did not sustain a back injury or disease in service, and did not have a chronic back symptoms in service. Notwithstanding the veteran's recent contention, histories, and testimony, there is no evidence of an in-service injury from a fall from a telephone pole, or of an injury to the veteran's back during his period of active service. The veteran's 1972 service separation examination report showed that his spine was clinically normal at separation, and the veteran, himself, indicated that he had never had arthritis, rheumatism, or recurrent back pain. The 1972 service separation examination report is highly probative as to the veteran's condition at the time of his release from active duty, as it was generated with the specific purpose of ascertaining the veteran's then-physical condition, as opposed to his current assertion which is proffered in an attempt to secure VA compensation benefits. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). On the question of in-service injury or disease of the back, the Board notes the veteran's testimony and recent statements in support of claim alleging an in-service back injury and symptoms; however, the Board finds the more contemporaneous in-service history presented by the veteran, including at service separation in 1972, as well as the specific clinical findings upon examination in service in 1972, including the absence of abnormal clinical findings and the absence of any entries reflecting in-service back injury, disease, or symptoms, to be more probative on the question of in-service incurrence and in-service symptomatology than the veteran's current recollection regarding in-service events and symptoms of the back made decades after the alleged event. The Board further finds that the veteran did not have continuous post-service symptoms of back disorder, including that arthritis of the spine did not manifest to a compensable degree during the first post-service year. On multiple occasions after service, including when the veteran filed disability claims in 1973 and 1974, he did not mention any back injury or symptoms. The first medical evidence of record of symptoms which may be associated with a back disorder following service is not until the October 2003 VA outpatient treatment record which shows reported back pain. This assessment was more than 30 years following discharge from service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). On the question of whether currently diagnosed arthritis of the spine is related to service, the Board finds that the weight of the competent evidence demonstrates that the currently diagnosed degenerative arthritis of the spine is not related to active service. On this question, the Board has considered the January 2005 VA general medical and spine examination reports which indicated that the veteran's asserted back disorder was likely related to his reported back injury during service; however, such opinion was based on an inaccurate history of the incurrence of a back injury in service, a finding that the Board has weighed and rejected. For reasons indicated, the Board has found that the service medical records to not corroborate any such back injury during service. Consequently, the relatively recent nexus opinions purporting to relate a currently diagnosed spine arthritis to an in-service injury are premised upon an inaccurate history of such in-service back injury. The weight of the service medical records, including the January 1972 separation examination, is greater than subsequent VA outpatient treatment records which may be based on an inaccurate history as provided by the veteran based on his recollection of service events and symptoms decades after service. A medical diagnosis is only as credible as the history on which it was based. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); see also Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (a diagnosis "can be no better than the facts alleged by the appellant"). Apart from evidence that the examiner's assessments were made on the basis of primarily the veteran's account, the facts underlying the assessments are not substantiated by the record, as at the time he was separated from active service there were no residuals of a back injury. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (It is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the veteran.). When viewed against the background of the service medical records which are negative for any symptoms associated with the back, and the lack of any evidence of symptoms associated with the back until 2003, the medical evidence of record does not establish that there is a nexus between any current diagnosis and service. Moreover, while a physician is competent to render medical opinions, such competence does not extend to the factual underpinnings of the opinion. See, e.g., Swann, 5 Vet. App. at 233 (the Board was not bound to accept opinions of two doctors who made diagnoses of PTSD almost twenty years following appellant's separation from service and who necessarily relied on an inaccurate history as related by appellant). It has been observed 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." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). Therefore, the Board does not find the January 2005 VA general medical and spine examination reports probative as to the etiology of the veteran's currently reported back symptoms. Moreover, the January 2005 VA spine examination report suggested that the veteran had also injured his back outside of service, and the veteran has provided a 20 year history of heavy lifting as a pipe fitter, and a history of multiple fights. As the competent evidence of record has not established a back disorder in service, nor a nexus between a current back disorder and service that is based upon an accurate history, service connection must be denied. See Hickson, 12 Vet. App. at 253. To the extent that the veteran claims that he has a current back disorder that is related to his active service, his assertions cannot be deemed competent as it has not been demonstrated that as a layperson, he is qualified to render a medical opinion regarding matters, such as diagnoses and determinations of etiology, calling for specialized medical knowledge. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board also recognizes that there is no evidence of record that the veteran was diagnosed with arthritis of the back which had become manifested to a compensable degree during the first year following his separation from service. Accordingly, entitlement to service connection for a back disorder on a presumptive basis is also not warranted. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the veteran's claim for service connection for a back disorder is denied. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for a back disorder. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Hepatitis C During the veteran's June 2007 Travel Board hearing, he asserted that he currently had hepatitis C which was manifested as a result of his period of active service. He indicated that he had never undergone a blood transfusion, and that he had no tattoos. He noted that while in service, he had one body piercing done, he received inoculations by air gun, he used intravenous drugs (amphetamine sulfate or liquid speed) once in service and intravenous cocaine once after service, and he had unprotected sex. He indicated that he first discovered he had hepatitis C in October 2002. The veteran's service medical records do not reflect any complaint, history, or diagnosis of hepatitis C. His October 1969 induction report of medical examination shows that upon clinical evaluation, his endocrine system was normal. His January 1972 separation report of medical examination also shows that upon clinical evaluation, his endocrine system was normal. In the associated report of medical history, it is noted that the veteran had been using LSD, however there is no indication of intravenous drug use. Subsequent to service, a November to December 1973 VA hospitalization summary reflects the veteran's report of having used various drugs, including opium, marijuana, and LSD, and that the veteran was seeking help in a drug program. A March to June 1974 VA summary of hospitalization report reflects a diagnosis of drug addiction and dependence; the veteran's history that he was taking drugs in service (speed, downers, and any drugs he could get hold of); the veteran's history that he started taking drugs while he was stationed in Vietnam, beginning in July 1970; and he reported that he had been treated fro drug addiction at Fort Dix; and use of speed; had been charged with carrying drugs in 1973; had been hospitalized at VA in 1973 for drug addiction. In the August 2003 claim for compensation, the veteran indicated that he was claiming that hepatitis C was due to Vietnam service in 1971. The VA outpatient treatment records dated from October 2003 to June 2005 show intermittent reports of symptoms associated with hepatitis C. It is noted that the hepatitis C antibody had its onset in April 2001. The records also show reports of intermittent drug use, to include intravenous drug use. The January 2005 VA gastro-intestinal examination report shows that the veteran had tested positive for the hepatitis C antibody in February 2004, and the findings were confirmed by testing conducted in April 2004. The veteran's history of risk factors for hepatitis C were said to include a history of intravenous drug use, along with cocaine, LSD, opium, and marijuana use. The veteran also had a history of alcoholism, drinking about six packs a night since 1979 (the veteran reported quitting about nine months earlier). He denied any tattoos or blood transfusions. He reported one piercing in the past, which he no longer had. The assessment was hepatitis C. The examiner indicated that the only risk factor was of a history of intravenous drug use in the past. The examiner opined that it was as likely as not that this was the source of the veteran's infection. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the weight of the evidence is against the claim. The veteran contends that his hepatitis C could be attributable to drug use. The veteran's service medical records provide evidence of drug use, but not of intravenous drug use. The law governing veteran's benefits states that no compensation shall be paid if a disability is a result of the disabled person's own abuse of alcohol or drugs. 38 U.S.C.A. § 1110. The Court has held that, although compensation may not be paid, 38 U.S.C.A. § 1110 does not preclude the establishment of service connection for such a condition. Barela v. West, 11 Vet. App. 280, 283 (1998). Direct service connection, however, may be granted only when a disability was incurred in the line of duty. 38 U.S.C.A. § 101(16) (West 2002). A disability is not incurred in the line of duty when it is the result of the abuse of alcohol or drugs. 38 U.S.C.A. § 105(a) (West 2002). The term drug abuse is defined to include the use of illegal drugs. 38 C.F.R. § 3.301(d) (2007). The VA General Counsel has interpreted these provisions to mean that a substance abuse disability cannot be service connected on the basis of its incurrence or aggravation in service. VAOPGCPREC 11-96. Thus, service connection for the veteran's hepatitis C may not be granted based on intravenous drug use in service, even if such drug use were adequately shown. The veteran's hepatitis C was diagnosed many years after separation from service. In addition to the intravenous drug use, the veteran has reported exposure to considerable hepatitis risks, including a body piercing, inoculations by air gun, and unprotected sex; however, there is no corroboration of the veteran's assertions within his service medical records. The Board does not find the veteran's reports of in-service risk factors to be credible, as the evidence of record shows that the veteran has on various occasions reported or been shown to have multiple incidents of drug abuse. The Board finds that the veteran's history that he presented at the July 2007 personal hearing - of a single intravenous drug use in service (amphetamine sulfate or liquid speed) and once after service (intravenous cocaine) - to be far outweighed by other histories the veteran gave more contemporaneous to service regarding multiple drug usage in service, including drug addiction and treatment, as well as post-service histories of poly-drug use, addiction, and treatment after service in 1973 and 1974. The veteran's overwhelming post-service drug usage must be considered in order to form an accurate history as the basis for any nexus opinion provided. The VA gastro-intestinal examiner in January 2005 concluded that the veteran's only risk factor was of a history of intravenous drug use in the past. The record shows substantial in-service and post-service drug abuse that outweighs the veteran's more recent history on this point. As noted above, hepatitis C may not be granted based on illegal intravenous drug use, either in service or post- service. The Board finds the opinion to be probative as it was definitive, based upon a complete review of the veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. 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. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board has considered the veteran's assertions in support of his claim that he has hepatitis C as a result of his service. While he is certainly competent to relate what he did in service and after service, and to describe the extent of his current hepatitis C symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. See Cromley, 7 Vet. App. at 379; Espiritu, 2 Vet. App. at 495. The Board recognizes that the veteran asserted having unprotected sex, a piercing, and inoculation by an air gun during his period of service; however, there is no competent evidence of record to establish that hepatitis C exposure is in actuality due to the asserted activities in service, especially in light of the well-documented and significant post-service history of multiple drug abuse, addiction, and treatment. For the reasons indicated, the Board finds that the veteran's recent testimony and assertions are not consistent, are outweighed by the earlier histories, including those made for treatment purposes, and are not supported by any other evidence in the record, including service medical record evidence. For the Board to conclude that the veteran's hepatitis C was incurred during service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2007); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, service connection for hepatitis C is denied. The veteran's assertion that his hepatitis C was incurred as a result of service is speculative, and there is no documentation that he was exposed to a risk activity other than illegal drug use during his period of active service. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for hepatitis C. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See Gilbert, 1 Vet. App. at 53. ORDER Service connection for a back disorder, including residuals of vertebral fracture (claimed as broken back), is denied. Service connection for hepatitis C is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs