Citation Nr: 0811024 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-05 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for Hepatitis B and C. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from November 1968 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDING OF FACT There is no competent medical evidence to establish the veteran currently suffers from Hepatitis B or C or any chronic residuals related thereto. CONCLUSION OF LAW Hepatitis B or C was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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) (West 2002). 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 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the veteran received notification prior to the initial unfavorable agency decision in August 2005. The RO's April 2005 notice letter advised the veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claim. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA 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. A March 2006 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records are associated with claims file. Post-service treatment records and reports from Cockerall & Associates have also been obtained. The appellant claimed additional private medical treatment by Dr. Senter of Austin, Texas. However, the veteran has indicated Dr. Senter no longer practices and these records are unavailable. Therefore, VA's duty to further assist the veteran in locating additional records has been satisfied. The veteran was afforded a VA Agent Orange examination in October 2004. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). The veteran maintains he first incurred Hepatitis B shortly after his separation from active duty service. He asserts this condition is secondary to exposure to herbicides, including Agent Orange. Service medical records are absent any complaint or findings of Hepatitis B or C in service. The veteran has submitted private treatment records indicating he suffered from some form of Hepatitis in 1973. However, these records do not indicate which strain the veteran was diagnosed with. In addition, these records do not indicate he received ongoing treatment for this condition. At his October 2004 VA examination, the veteran reported a history of Hepatitis B after his return from Vietnam. The Board notes that there is no evidence that the veteran is currently diagnosed with any form of Hepatitis or suffers from any related chronic residuals. As noted above, the veteran was afforded a VA Agent Orange examination in October 2004, during which the examiner noted that he has had no elevated liver function tests nor blood transfusions since he suffered from Hepatitis B in 1973. The veteran has provided no competent medical evidence indicating he currently suffers from either Hepatitis B or C or any related chronic residuals. Without a current diagnosis of Hepatitis B or C, the Board cannot grant service connection. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). In sum, the Board finds that there is no competent evidence of a current diagnosis of Hepatitis B or C. The veteran has produced no competent evidence or medical opinion in support of his claim that he suffers from Hepatitis B or C, or any related chronic residuals, and all evidence included in the record weighs against granting the veteran's claim. ORDER Service connection for Hepatitis B and C is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs