Citation Nr: 0810079 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 04-25 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for an acquired psychiatric disability, to include as due to hepatitis C. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Curameng, Associate Counsel INTRODUCTION The veteran had active duty service from January 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran's notice of disagreement was received in July 2003. A statement of the case was issued in June 2004, and a substantive appeal was received in July 2004. In a notice of disagreement received in July 2003, the veteran stated that he wanted a Board hearing at the RO. In September 2003, the RO called the veteran and the veteran confirmed the request. However, by a substantive appeal received in July 2004, the veteran checked the appropriate box to indicate that he did not want a Board hearing. FINDINGS OF FACT 1. Hepatitis C was not manifested during the veteran's active duty service or for many years thereafter, nor is hepatitis C otherwise related to such service. 2. Acquired psychiatric disability was not manifested during the veteran's active duty service or for many years thereafter, nor is acquired psychiatric disability otherwise related to such service or to the veteran's hepatitis C. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Acquired psychiatric disability was not incurred in or aggravated by service nor is acquired psychiatric disability proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in April 2002 (for hepatitis C) and in February 2003 (for acquired psychiatric disability). The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claims. The RO also provided the appellant with notice in a February 2007 supplemental statement of the case subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claims. There was no subsequent readjudication of the claims, but in view of the fact that the claims of service connection are being denied, no disability rating or effective date will be assigned. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The veteran and his representative have not alleged any prejudice as a result of the untimely notification, nor has any been shown. VA has obtained service, VA and private medical records. The veteran has also been afforded VA examinations for hepatitis C (March 2003 and March 2005) and acquired psychiatric disability (March 2003). All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). I. Hepatitis C The first issue before the Board involves a claim of entitlement to service connection for hepatitis C. Service medical records are silent for any complaints of, treatments for, or diagnosis of hepatitis C. In an August 1971 discharge examination, there was no indication that the veteran had hepatitis C. The August 1971 report of separation examination did show a scar on the upper right chest which was not noted on the report of entrance examination. Service medical records, including the report of separation examination, do not refer to any knife fight or knife injury. Post service medical records from Group Health Cooperative (Group Health) reflect treatment by Erick P. Jaecks, MD and that the veteran was first diagnosed with hepatitis C in August 2001, approximately 30 years after service. This lengthy period without treatment after service suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). However, the veteran maintains that he received treatment for hepatitis C since 1972, one year after service. And in a letter received in July 2004, the veteran stated that together with Eric Jaecks, M.D., they determined that he had hepatitis C for over thirty years and that thirty years ago, he was still in service. However, after a review of private medical records from Dr. Jaecks, it appears that Dr. Jaecks had not made such determination, but had merely recorded past medical history as relayed by the veteran. The Board also acknowledges the aforementioned August 2001 post service medical record, a March 2002 letter from Dr. Jaecks, a November 2004 statement from his representative, and March 2003 and March 2005 VA examinations that all reflect a past medical history as reported by the veteran that he had liver disease that dated back to about 30 years. And VA medical records from February 2005 to March 2006 reflect a past medical history of hepatitis C. However, the Board notes that mere recitations of what the veteran reported do not carry probative weight. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In a March 2005 VA examination, the veteran reported being diagnosed with hepatitis C with routine blood testing through Kaiser Aluminum at Rockwood Clinic (Rockwood Clinic) in 1972. The RO sent a May 2006 letter to the veteran notifying the veteran that the RO was not in receipt of those treatment records. He was advised to complete and return an Authorization and Consent to Release Information to the VA. The Board notes that the only medical records from the Rockwood Clinic available in the veteran's claims file reflect treatment at the facility from October 1990 to July 1992, but not for hepatitis C. To date, the veteran has not submitted neither a completed an Authorization and Consent to Release form nor Rockwood Clinic records dating back to 1972 has been received. Further in his claim received in January 2002, he stated that he received treatment for hepatitis C in 1972 from Dr. Jaecks. The Board notes that the earliest medical record from Dr. Jaecks is from August 2001. The Board also notes that in a May 2006 letter, the veteran was informed that the RO was also not in receipt of medical records from Dr. Jaecks dating back to 1972. He was advised to complete and return an Authorization and Consent to Release Information to the VA or ask Dr. Jaecks himself to send his records directly to the VA. To date, neither a completed Authorization and Consent to Release form, nor medical records from Dr. Jaecks dating all the way back to 1972 has been received. Overall, there is no medical opinion of record establishing that the veteran's hepatitis C is most likely than not related to service. Instead, the Board is presented with speculative medical opinions from both the veteran's private physician and a VA examiner that cannot establish in-service medical nexus to service. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When the veteran was afforded a VA examination in March 2005, the final diagnosis was hepatic C virus with failed treatment with a present viral load hepatitis C virus. The VA examiner continued that if the veteran was identified as non A, non B hepatitis in 1972 at Rockwood Clinic, then his hepatitis C is most likely caused by high risk behavior in service-knife wound and high risk sexual activity. The VA examiner also stated that if the veteran was not diagnosed with hepatitis C until later, then it is more likely than not been caused by or the result of intranasal cocaine use or excessive alcohol use after service. Further, a March 2002 medical record from Group Health shows that Dr. Jaecks could not say with any certainty when or where the veteran acquired hepatitis C. And in a March 2002 letter, Dr. Jaecks stated that it was unknown how the veteran acquired hepatitis C. In September 2003, the veteran submitted an e-mail article from Dunsmuir News entitled "New Decision on Hepatitis C." It was noted in the article that a Vietnam veteran was awarded service connection for hepatitis C as a result of "jet injectors" used for inoculations of most service members during the Vietnam Era and after. In a June 2004 letter from the RO, he was informed that in a recent Veterans Health Administration (VHA) opinion, it was noted that "hepatitis C transmission through 'air gun' or 'jet' injectors has been the subject of much speculation, but, to date, no evidence of a causal relationship has been established. . . . It should be noted as well, that in other types of blood or blood exposure, such as needlesticks, hepatitis B is transmitted more easily and efficiently than hepatitis C. Therefore, without further information regarding improper use of an injection device, acute illness associated with infection or documented conversion of a blood test from negative to positive, and on the absence of any statically sound epidemiologic link between hepatitis C and receipt of immunizations with injection devices, the possibility that hepatitis C resulted from immunizations during military service must be viewed as unlikely." The VHA opinion continued that if hepatitis C was granted based on jet-injector use in service, the decision did not establish a precedent. It was further noted that "a veteran may have claimed service connection of hepatitis C due to jet-injectors, but there may be other risk factors in service which could establish entitlement to service connection." The Board notes that the article submitted via e-mail by the veteran only raises a possibility that there may be some relationship between being injected with jet injectors and hepatitis C, but the article does not show that there is a direct relation between the veteran's hepatitis C and service. In a March 2003 VA examination, the veteran stated that he could have contracted hepatitis C from major tooth work performed by a dentist who probably did not use clean instruments. He further stated that he could have contracted hepatitis C after being treated with stitches after a knife fight or when he underwent plastic surgery in service. The Board acknowledges a November 1969 military personnel record that reflects a November 1969 Commanding Officer's Non- Judicial Punishment for a breach of the peace by the veteran by engaging in a fight in October 1969 and a April 1970 service medical record reflecting plastic surgery. However, the personnel records do not reference a knife fight or injury. Moreover, the fact that the veteran had plastic surgery does not without more provide a basis for attributing the hepatitis to such procedure. There is no competent evidence suggesting such a link. Although lay persons are competent to provide evidence regarding injury and symptomatology, they are not competent to provide evidence regarding diagnosis or etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder. Also, an August 2001 medical record from Group Health reflects that the veteran reported being told that he acquired hepatitis C "off a cup drinking after someone." It is unclear whether or not this was relayed to him by a physician. Even assuming for the sake of argument that it were a physician, the Board notes that a lay person's account of what a doctor purportedly said is too attenuated and inherently unreliable to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the veteran's claim. II. Acquired Psychiatric Disability The other issue before the Board involves a claim of entitlement to service connection for an acquired psychiatric disability, to include as due to hepatitis C. The Board notes that service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). The Board further notes, however, that even though the veteran is not seeking service connection on a direct basis, all theories of entitlement--direct and secondary--must be considered. See Hodge v. West, 155 F.3d 1356, 1362-1363 (Fed. Cir. 1998) (noting that Congress expects the VA "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits"). Here, service connection is not warranted on a direct theory of entitlement. Service medical records are silent for any treatments of, complaints of, and diagnosis of an acquired psychiatric disability. An August 1971 separation examination shows that the veteran's psychiatric evaluation was clinically evaluated as normal and that there was no indication of an acquired psychiatric disability. There is also no evidence of a continuity of symptomatology until many years after service. Post medical records show that the veteran was first diagnosed with depression by Dr. Jaecks of Group Health in May 2002, over 20 years after service. The lengthy period without treatment after service suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, the veteran's acquired psychiatric disability manifested itself more than one year after the presumptive period. Further, there is no medical evidence of record linking an acquired psychiatric disability to service. Again, the veteran's main contention regarding acquired psychiatric disability (specifically, his depression) is that it is secondary to hepatitis C. Although a March 2003 VA examination and a March 2003 letter from Dr. Jaecks links depression to the veteran's hepatitis C, as noted above, service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (emphasis added). Here, the veteran's hepatitis is not service connected. Thus, service connection for an acquired psychiatric disability is not warranted on a secondary basis. The Board understands fully the veteran's contentions. Nevertheless, after thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination as to this issue. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the veteran's acquired psychiatric disability claim. ORDER The appeal as to both issues is denied. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs