Citation Nr: 0810219 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 02-08 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran has reported active service from June 1974 to December 1974 per his DD 214. Another document established that he had been released from active duty for training. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was previously remanded for further development by the Board in May 2004 and March 2006. That development completed, the matter is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The veteran has hepatitis C. 2. The veteran's hepatitis did not have onset during active service and is not related to his active service. CONCLUSION OF LAW Hepatitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2007) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 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). VA satisfied the duty to notify by means of letters sent to the veteran in May 2004, July 2004, and April 2007. The May 2004 and July 2004 letters informed the veteran of the evidence required to substantiate his claim and of his and VA's respective duties in obtaining evidence. Specifically, he was told that VA would obtain all relevant evidence in the custody of a federal department or agency and advised that it was his responsibility to either send medical treatment records from his private physician or to provide a properly executed release so that VA could request the records for him. These letters also asked the veteran to submit any evidence in his possession that pertained to his claim and requested that he submit any other information or evidence he considered relevant to his claim so that VA could help by getting that evidence. The April 2007 letter informed the veteran as to assignment of disability ratings and effective dates and of the types of evidence or information to submit to substantiate those elements. Although the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Following VCAA notice, the veteran he has had a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. Significantly, the RO readjudicated his claim by way of a supplemental statement of the case issued in November 2007. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication and has indeed been cured. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a supplemental statement of the case, is sufficient to cure a timing defect). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As to records reportedly held by a Federal department or agency, VA must continue to make efforts to obtain such records unless VA determines that the records do not exist or that further efforts to obtain the records would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). As to records reportedly in the custody of other than a Federal agency or department, VA must make reasonable efforts to obtain relevant records; generally by an initial request and up to one follow up request. Id. In the present case, the evidence includes service medical records, VA treatment records, and treatment records from the Texas Department of Criminal Justice. The RO has repeatedly requested the veteran's service records. The National Personnel Records Center has repeatedly responded that no additional records can be identified. Additionally, the veteran reported treatment at Herman Hospital; however, the hospital responded stating that the veteran was not in their system. The veteran also reported treatment with John Peter Hospital. The RO repeatedly requested records from this hospital and also informed the veteran that he could provide these records; no records have been received. Though these records have not been obtained, the Board finds that the RO has complied with the duty to assist as the RO has made several reasonable efforts to obtain these records. In May 2007, the veteran was afforded a VA medical examination with regard to his claim on appeal and a medical opinion was obtained as to the nature and etiology of his hepatitis. Therefore, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran has not claimed that VA has failed to comply with the notice requirements of the VCAA. Service connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110, 1131 (2002); 38 C.F.R. § 3.303(a) (2007). Service connection may also be granted for any disease initially 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). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2007). The Board notes at the outset that that risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. In his March 2001 claim, the veteran contended that he was exposed to a virus during service which resulted in numerous disorders, including asthma, a skin disorder, hepatitis, and a psychiatric disorder. In a June 2004 statement, the veteran reported being exposed to gas in a training exercise during service, reported a number of symptoms occurring sometime after that, including blood in his urine, and stated his belief that his hepatitis, along with a number of other medical disorders, were related to his exposure to biological agents during service. In a July 2004 statement, the veteran stated that he developed a medical condition in October 1974 that went untreated. In that same document he attributed his "biological breakdown", and apparently his hepatitis C, to exposure to gas used in a training exercise during basic training. He also reported that sometime after that he experienced such symptoms as a headache, blood in his urine, insomnia, and difficulty keeping food down. Service medical records are absent for any mention of hepatitis. These records document the veteran's report of burning on urination, and blood in his underwear; occurring in October and November 1974. He was assessed as having nonspecific uretheritis and a history of hemorrhoids. A separation medical examination, dated in November 1974, indicates a normal clinical evaluation of his genito-urinary system. In an associated report of medical history, the veteran indicated that he was in good health. September 1999 medical treatment records from the Texas Department of Criminal Justice contain the earliest report that the veteran had hepatitis. These records do not provide an opinion as to the etiology of his hepatitis. In May 2007, the veteran underwent a VA examination to determine the nature and etiology of his claimed hepatitis. The examiner indicated that he had reviewed the veteran's claims file in conjunction with the examination. He provided a diagnosis, based on current laboratory liver function test results, that the veteran has hepatitis C. In his report, the examiner related the veteran's report that he had worked as a custodian in a hospital after service. He also recorded the veteran's report of no tattoos, body piercing, intranasal cocaine use, intravenous drug use, and that his hospital employment had not exposed him to blood. The examiner opined that it is unlikely that the veteran acquired hepatitis C during his active service. Rather, it was the examiner's opinion that the veteran acquired the viral infection either as a hospital facility employee or during his incarceration. In providing a rationale for this opinion, the examiner stated that risk factors pertinent to this veteran's claim included exposure to inmate blood through sexual contact or through injury during his incarceration. The Board finds this opinion highly probative as to the etiology of the veteran's hepatitis because the examiner reviewed the veteran's medical history and provided a detailed and logical rationale for his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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). An October 1999 social history, from the Texas Department of Criminal Justice, provides factual support for the May 2007 opinion. The also relates the veteran's report of engaging in numerous fights with other inmates. This report also contains a history of the veteran's periods of incarceration, indicating that he had been incarcerated on and off from prior to July 1987 through the date of the report. Furthermore, the record shows that the veteran's period of incarceration that began in June 1993 extended into 2003. Thus, the record supports the examiner's opinion regarding incarceration and the attendant exposure risks, including the veteran's own reports of physical violence. In the report, there was a notation of a charge of sexual misconduct during incarceration. The Board has considered the veteran's statements as to why he believes his hepatitis is related to service. He is certainly competent to state that he suffered from painful urination during service, observed blood in his urine, and had other symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, his opinion that his hepatitis was manifested as the painful urination, resulted from some undiagnosed virus present during service, or resulted from exposure to training gas or biological agents, is not competent evidence. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the etiology of hepatitis, first manifested many years after exposure to an alleged cause or to observed general physical symptoms, is far to complex a medical question to lend itself to the opinion of a layperson. The record is absent for any mention of hepatitis for more than a quarter of a century after separation from service. All competent evidence of record indicates that the veteran's current hepatitis is unrelated to his service. There is no competent evidence to the contrary. Thus, the preponderance of the evidence is against his claim for service connection for hepatitis and the claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulation. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2007). ORDER Service connection for hepatitis is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs