Citation Nr: 0813493 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-20 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1971 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). The veteran requested a Decision Review Officer (DRO) hearing and a Travel Board hearing; however, he failed to appear for the DRO hearing scheduled in May 2005 and the Travel Board hearing scheduled in January 2007. The case was previously before the Board in July 2007 when it was referred to the Veterans Health Administration (VHA) for an advisory medical opinion. In January 2008, the veteran's representative filed a motion for an extension of time to submit evidence to the Board. In January 2008, the Board granted the veteran's representative's motion for an extension of time until March 25, 2008 to submit evidence in support of the veteran's claim; the veteran has not submitted any additional evidence. FINDING OF FACT The veteran's hepatitis C is not shown to be related to his service or to medical or dental treatment he received therein, and is not shown to be proximately due to or the result of his service-connected left little finger disability. CONCLUSION OF LAW Service connection for hepatitis C is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, a March 2006 letter provided certain essential notice prior to the readjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A June 2004 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claim. A March 2006 letter informed him of disability rating and effective date criteria in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A November 2006 supplemental statement of the case (SSOC) readjudicated the matter after the veteran received this additional notice and additional development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006) (finding that a timing defect can be cured by notice followed by readjudication of the claim by the Agency of Original Jurisdiction). The veteran's service medical records (SMRs) and pertinent treatment records have been secured. The RO arranged for a VA examination in June 2006 and the Board obtained a medical advisory opinion from a VHA specialist in October 2007. The Board notes that its July 2007 request for a VHA opinion asked that an infectious disease specialist be consulted, but that the October 2007 VHA opinion was by a gastroenterologist. While it is not clear whether the gastroenterologist consulted was specifically an infectious disease specialist, as hepatitis C affects the liver (see DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 837 (30th Ed. 2003)), a gastroenterologist, who specializes in diseases of the digestive tract (see DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 758 (30th Ed. 2003)), is eminently qualified to address potential sources of hepatitis C transmission. The October 2007 specialist specifically responded to the question posed without resorting to speculation, provided a rationale for the opinion given, reviewed the veteran's claims file, and discussed the facts and medical principles involved. Hence, the Board finds that this opinion substantially complied with the provisions of the July 2007 engagement letter. D'Aries v. Peake, No. 05-1468 (U.S. Vet. App. Apr. 8, 2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Factual Background SMRs reveal the veteran underwent several dental procedures in February through April 1971; these records do not show that he had any blood transfusions. In December 1971, the veteran suffered a knife cut and severed the flexor tendon of the little finger of his left hand. He underwent several surgical procedures during the remainder of service for his left finger disability. Operation reports and detailed post- operative treatment records do not show that he received any blood transfusions during or as a result of these surgeries. His SMRs are silent for complaints, findings, treatment, or diagnosis relating to hepatitis C. A December 1973 rating decision granted service connection for laceration of the flexor tendon, little finger, left hand. July to August 1999 private treatment records from Dr. J. L. G. reveal the veteran underwent a ray amputation of the little finger of the left hand because of pin site cellulitis and possible osteomyelitis of the proximal phalanx of the left small finger with non-union of fracture. A September 2000 rating decision found that the amputation was a result of the veteran's service-connected left little finger disability and increased the rating of that disability. March 2004 private pathology results show interface hepatitis. A March 2005 letter from private physician C. W. states that the veteran has hepatitis C and that the mode of transmission of the virus is by parenteral contact with blood or blood products, with injection drug use being the major route of transmission of hepatitis C. The veteran denied intravenous drug use along with snorting cocaine. C. W. also noted that sexual transmission of hepatitis C is well documented, but that the exact frequency of the occurrence is debated and that other less frequent causes include needle sticks and maternal-infant transmission. He concluded that the veteran's "risk factor for [hepatitis C] transmission points toward blood transfusion in the 1970's to the best of my knowledge." On June 2006 VA examination, the VA examiner noted that he reviewed the veteran's claims file in great detail, including Dr. C. W.'s opinion. He discussed the various surgeries performed on the veteran's left little finger during service and noted that the operative reports show that broad hemostasis was obtained with epinephrine, pressure, and tourniquet; there was no mention of any significant blood loss or blood transfusions related to the initial injury or subsequent repairs. He concluded that it was "not possible that his hepatitis C could be cause[d] by or a result of a blood transfusion which did not occur." Regarding whether hepatitis C was related to the post-service service-connected amputation of the left little finger, he noted that the records reflect the usual and accepted antiseptic techniques were followed in all of the procedures and that there were no accidental needle sticks. Thus, he opined that it was less likely than not that hepatitis C was related to either the repair or the subsequent surgeries of his laceration of his left little finger. In July 2007, the Board referred the case for a VHA medical advisory opinion regarding whether hepatitis C may have been acquired from dental procedures during service. In October 2007, a VHA specialist reviewed the veteran's claims file, noting Dr. C. W.'s opinion. The specialist indicated the veteran's records show that he had dental work done between February 1971 and May 1971 and noted that while he was not an expert on the technical details of dental procedures, the records did not reflect that the veteran received any blood transfusions during any of these procedures. He notes that the sterilization and disinfection techniques were not as advanced in 1971 as they are currently. He provides the following opinion: Even then, considering above records available for examination, literature search including guidelines for infection control in dental health care setting 2003, it is still unlikely (less than 50% probability) that the veteran acquired his current hepatitis C from dental procedures in service rather than from another potential source of [hepatitis C] infection. In case more detail of the dental procedures done on him are available, perhaps a dentist can comment more comprehensively on this issue. In support of his conclusion he attached Guidelines for Infection Control in Dental Health Care Settings - 2003 which states that hepatitis C "appears not to be transmitted efficiently through occupational exposures to blood." These guidelines note that the prevalence of hepatitis C among dentists, surgeons, and other hospital based health care providers are similar to that among the general population. The only occupational risk factor independently associated with hepatitis C infection is unintentional needlesticks. There were no reports of transmission from hepatitis C infected dental providers to patients and the risk for such transmission appeared to be limited. There were multiple reports of transmission from hepatitis C infected surgeons performing invasive procedures, but the overall risk was 0.17 percent. C. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The veteran contends that hepatitis C is either related to dental procedures or blood transfusions during service or is secondary to his service-connected left little finger disability. Regarding direct service connection, the record includes both medical evidence that tends to support the veteran's claim of direct service connection and medical evidence that is against his claim. Significantly, there is no evidence the veteran had any blood transfusions done during service, including as a result of dental procedures or during surgeries completed on his left little finger. Evidence tending to support his claim includes the March 2005 letter from Dr. C. W.; the evidence against his claim includes the June 2006 VA examiner's opinion and the October 2007 opinion by a VHA specialist. When evaluating these opinions, the Board must analyze the credibility and probative value of the evidence, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The March 2005 letter from Dr. C. W. merely states that the veteran's "risk factor for [hepatitis C] transmission points toward blood transfusion in the 1970s." Notably, the veteran was only in service for two years during the 1970s and this opinion does not indicate whether the alleged blood transfusion occurred during those two years or during pre- or post-service years of the 1970s. In fact, it does not provide any information as to when or why the veteran had a blood transfusion; as previously noted, the veteran's SMRs do not show that he received a blood transfusion during service. Additionally, while this opinion discusses potential risk factors for hepatitis C, the only potential risk factor it rules out for the veteran is injection drug use. While it indicates that sexual transmission, needle sticks, and maternal-infant transmission are less frequent causes of hepatitis C, it does not rule out these risk factors as possible modes of transmission for the veteran. Instead, the opinion makes a general statement that his risk factor is related to blood transfusion sometime during the decade of the 1970s. Because of its speculative nature, in that it does not limit the time period of any blood transfusion solely to the veteran's service, it is inadequate for the Board to make a fully informed evaluation of the relationship between the veteran's service and hepatitis C. See Stefl v. Nicholson, 1 Vet. App. 120, 123 (2007). It is also not clear from this opinion that Dr. C. W. reviewed the veteran's claims file or was aware of his medical history as he does not discuss the veteran's related history other than to say that he denied injection drug use and snorting cocaine. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file is an important factor in assessing the probative value of a medical opinion). Hence, the Board finds this opinion holds little probative weight regarding whether there is a relationship between hepatitis C and the veteran's service. In contrast, the June 2006 VA examiner's opinion and the October 2007 VHA specialist's opinion are based on full review of the veteran's claims file, as evidenced by their discussion of evidence from his SMRs and Dr. C. W.'s opinion. The June 2006 VA examiner specifically refutes Dr. C. W.'s opinion by concluding that there is no evidence the veteran had blood transfusions during service and that it "is therefore not possible that his hepatitis C could be cause[d] by or a result of a blood transfusion which did not occur." The October 2007 VHA specialist states that SMRs do not show that the veteran received any blood transfusions in the course of dental procedures during service. He also reviewed literature addressing infection control in dental procedures and concluded that it was unlikely that the veteran acquired hepatitis C from dental procedures in service rather than from another potential source of hepatitis C infection. [The Board notes the specialist's suggestion that if there were more detailed records regarding the veteran's dental procedures that maybe a dentist should comment on the issue; however, a review of the record shows that all of the veteran's SMRs, including dental treatment records have been associated with the claims file and that there are no more detailed dental records that could be obtained. Hence, the Board finds that it is not necessary to obtain an additional opinion from a dentist as the gastroenterologist is qualified to address potential sources of hepatitis C transmission.] Notably, the only competent medical evidence addressing the relationship between the veteran's dental procedures and hepatitis C is the October 2007 VHA specialist's opinion (that is against the veteran's claim); there is no contrary opinion of record. Regarding secondary service connection, the evidence shows the veteran has a diagnosis of hepatitis C and has a service- connected left little finger disability. What remains to be shown is that the hepatitis C was caused or aggravated by the service-connected left little finger disability. The preponderance of the evidence is against such a finding. The only competent (medical) evidence that addresses the question of a relationship between the veteran's left little finger and hepatitis C is the June 2006 VA examiner's opinion that it is less likely as not that hepatitis C was related to either the repair or the subsequent surgeries of the laceration of the left little finger. The March 2005 opinion of Dr. C. W. does not directly address the issue of whether hepatitis C was proximately due to or a result of his service-connected left little finger disability, rather it merely indicates that it was a result of blood transfusion in the 1970s. As was previously noted, the veteran's SMRs and his postservice treatment records do not show that he received any blood transfusions in the course of treatment, including surgery, for his left little finger disability. Hence, the March 2005 opinion does not adequately address the question of a relationship between the service-connected left little finger disability and hepatitis C and has no probative value as to that question. The veteran's own statements that his hepatitis C resulted from in service dental procedures, blood transfusions, or as a result of his service-connected left little finger disability are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Therefore, the Board finds that the preponderance of the evidence is against a finding that the veteran's hepatitis C is related to his service or is proximately due to or the result of his service-connected little left finger disability. The benefit of the doubt doctrine does not apply and the claim must be denied. ORDER Service connection for hepatitis C is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs