Citation Nr: 0813281 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-07 359 ) 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 a cervical spine disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from June 1973 to June 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Portland, Oregon, which, in pertinent part, denied the above claims. FINDINGS OF FACT 1. The veteran's hepatitis C has not been shown to have been incurred in or aggravated by service. 2. A cervical spine disorder 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 hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 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 a cervical spine disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (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 October 2003, March 2006, and July 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 letters dated in March 2006 and July 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, as entitlement to service connection is being denied, no effective date or rating percentage will be assigned, thus, the Board finds that there can be no possibility of any prejudice to the veteran 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. Hepatitis C In his Veteran's Application For Compensation And/Or Pension (VA Form 21-526) received by the RO in September 2003, the veteran asserts that he currently has hepatitis C which was manifested as a result of his period of active service. He specifically attributes his exposure to hepatitis C to receiving inoculations by air gun during his period of active service. The veteran's service medical records do not reflect any complaint, history, or diagnosis of hepatitis C. His August 1972 induction report of medical examination shows no abnormalities of the endocrine system upon clinical evaluation. His May 1976 separation report of medical examination also shows that upon clinical evaluation, his endocrine system was normal. Subsequent to service, a Risk Factors For Hepatitis Questionnaire completed by the veteran in October 2003 shows that he indicated that he had used intravenous drugs, as well as, intranasal cocaine. A VA outpatient treatment record dated in June 2003 shows that the veteran's recent blood test was positive for hepatitis C antibodies. VA outpatient treatment records dated from June 2003 to September 2005 show intermittent treatment for symptoms associated with chronic hepatitis C. The records also show that the veteran would intermittently provide a long history of substance abuse. He was periodically assessed with methamphetamine dependence, continuous; cocaine dependence, in remission; and polysubstance abuse, in remission. He reported having used cocaine, marijuana, and LSD. A VA liver, gall bladder, and pancreas examination report dated in November 2005 shows that the veteran's claims file was reviewed in conjunction with conducting the examination. The examiner indicated that the veteran was diagnosed with hepatitis C in 2003. The veteran described his risk factors to include air gun inoculation in service, which caused visible bleeding in each recipient, with splattering of blood. He also admitted to intravenous drug use over a one to two month period in the early 1980's. He denied ever having a transfusion. He currently had no symptoms from the hepatitis. The impression was hepatitis C. The examiner concluded that the most likely risk factor for hepatitis C was the veteran's history of intravenous drug use. 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 air gun inoculation in service. While there is no indication that the veteran used intravenous drugs in service, his post-service medical records show a long history of drug use, to include 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. However, 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 inoculations by air gun; however, there is no corroboration of the veteran's assertions within his service medical records. The Board does not find the veteran's report 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 November 2005 VA liver, gall bladder, and pancreas examination report concluded that the most likely risk factor for hepatitis C was the veteran's history of intravenous drug use. 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. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board recognizes that the veteran asserted having an 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 activity 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 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 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. Cervical spine disorder The veteran's August 1972 induction report of medical examination shows no abnormalities of the spine of other musculoskeletal system upon clinical evaluation. A chronological record of medical care dated in November 1975 shows that the veteran was treated for reported neck pain. Physical examination had revealed tenderness in the sub- occipital left, with restricted range of motion. The diagnosis was myositis. The veteran's May 1976 separation report of medical examination shows that upon clinical evaluation, his spine and other musculoskeletal system were normal. The associated separation report of medical history, also dated in May 1976, shows that the veteran indicated he had never had back pain or arthritis. Subsequent to service, a VA outpatient treatment record dated in October 2003 shows that the veteran indicated that during service in 1974, he had been unloading heavy items from a truck at which time he sustained an injury to his head and neck manifested by aching and pain. He indicated that he was treated at an infirmary. His symptoms included stiffness and aching in the muscles of the neck and upper back, and that he would also experience tingling in the forearm. A VA outpatient treatment record, also dated in October 2003, shows that the veteran was treated for neck pain following hearing a snap when he had bent over to pick up a hose while turning his head. He described resulting pain, numbness, and tingling. A VA outpatient treatment record dated in November 2004 shows that the veteran reported longstanding ongoing chronic neck and back pain. VA outpatient treatment records dated in January 2005 and February 2005 show that the veteran reported a stiff neck following an incident at work whereby he had been carrying a board at work when one side dropped. A longstanding ongoing chronic history of neck and back pain was noted. The diagnosis was degenerative joint disease of the neck, with strain, possibly early herniated disk. During the November 2005 VA examination, the veteran reported that he first injured his neck during service when he had been unloading a heavy box of chicken from a shelf which fell onto his right shoulder. He described being in a neck brace for about two weeks. No other history of trauma to this area was noted. He reported a history of recurrent symptoms in the neck area. X-rays of the cervical spine showed multilevel degenerative disc disease. The impression was degenerative disc disease of the cervical spine, with significant decrease in range of motion. The examiner concluded that this was most likely caused by the trauma that occurred while the veteran was in service. A VA magnetic resonance imaging (MRI) study of the cervical spine dated in March 2006 shows an impression of multilevel degenerative disc and facet disease, most severe at C4-5, where there was mild central canal stenosis and moderate bilateral neural foraminal narrowing. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. The Board recognizes that the veteran was treated for reported neck pain in service in November 1975, for which he was diagnosed with myositis. However, this appears to have been acute and transitory in nature as it was the only record of treatment in service, and during the veteran's May 1976 separation examination, his spine and musculoskeletal system were clinically normal. Additionally, the veteran, himself, indicated that he had never had back pain or arthritis. The veteran's separation physical 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). The weight of the service medical records is greater than subsequent VA outpatient treatment records based on a history as provided by the veteran. The record is also devoid of any records of treatment for symptoms associated with the veteran's asserted cervical spine disorder until the October 2003 VA outpatient treatment records, approximately 27 years following separation 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 a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The veteran's lay assertions of in-service cervical spine injury that is related to a current disability is outweighed by the normal spine at discharge from service and the absence of any reports of a cervical spine disorder for many years following service. Moreover, in October 2003, the veteran described his in-service cervical spine injury to an incident wherein he had been unloading heavy items from a truck. In November 2005, he attributed his symptoms to unloading a heavy box of chicken from a shelf during service. The veteran's inconsistent statements are found to provide evidence against the claim as they are also found to diminish his overall credibility. The Board has considered the November 2005 VA examination in which the examiner concluded that the veteran's cervical spine disorder was most likely caused by the trauma that occurred while the veteran was in service. However, 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 cervical spine 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 provide an isolated incident of reported neck pain, and the lack of any evidence of symptoms associated with a cervical spine disorder at separation or 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 history as related by appellant]. The Board has considered the veteran's statements in support of his claim that he has a cervical spine disorder as a result of his service. While he is certainly competent to describe the extent of his current symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render him competent to render a medical diagnosis or opinion as to medical causation. Cromley, 7 Vet. App. at 379; Espiritu, 2 Vet. App. at 495. Additionally, there is no evidence of record that the veteran had manifested any symptoms of arthritis of the cervical spine within one year from the date of separation from service. As such, presumptive service connection pursuant to 38 C.F.R. § 3.307 would also not be available. In the absence of medical evidence establishing that the veteran currently has a cervical spine disability that is related to an in-service injury or disease, the preponderance of the evidence is against the claim for service connection for a cervical spine disorder. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue. That doctrine is not for application in this case because the preponderance of the evidence is against the veteran's claim. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is denied. Service connection for a cervical spine disorder is denied. ____________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs