Citation Nr: 0813838 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-07 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty service from March 1971 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2006, the veteran testified at a videoconference before the undersigned Veterans Law Judge. The Board previously remanded this matter in November 2006. FINDING OF FACT There is competent medical evidence which demonstrates that hepatitis C is attributable to service. CONCLUSION OF LAW Resolving reasonable doubt in the veteran's favor, hepatitis C was incurred in service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs 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, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2007). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this 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. A. Duty to Notify In a December 2003 letter, the RO notified the veteran of the evidence required to substantiate a claim for service connection. This letter explained VA's duty to assist the veteran with the development of his claim and informed the veteran what evidence VA would be responsible for obtaining and what evidence VA would assist the veteran in obtaining. This letter also advised the veteran to submit any relevant medical records in his possession. This notice complied with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. A November 2006 letter informed the veteran of the evidence necessary to establish a disability rating or effective date in the event of award of the benefit sought. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). B. Duty to Assist The RO made reasonable and appropriate efforts to assist the veteran with the development of this claim. The record in this case includes service medical records and post-service VA and private medical records. The veteran was afforded VA examinations from which opinions were obtained. Under these circumstances, the Board finds the requirements of the duty to assist have been satisfied, that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran. II. Analysis of Claim 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 active service. 38 U.S.C.A. § 1110. 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). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the May 2006 hearing, the veteran testified that he believes he contracted hepatitis C from air gun inoculations during service. He testified that a corpsman aboard his ship gave him tattoos during service. He testified that he did not use intravenous drugs during service or after service. On a hepatitis C risk factors questionnaire submitted in July 2004, the veteran denied the use of intravenous drugs or intranasal cocaine. He denied a history of high-risk sexual activity, hemodialysis, tattoos or body piercings, sharing toothbrushes or razor blades, acupuncture with non-sterile needles and blood transfusions. The veteran served on active duty from March 1971 to November 1971. The report of the February 1971 enlistment examination indicates that no tattoos were noted. Service medical records show that the veteran was seen on an emergency basis in July 1971 with complaints of reported drug abuse. It was noted that the veteran denied an addiction to drugs but stated that he began to use acid in boot camp. The veteran reported that he used acid or smoked pot two weeks prior. A physician noted, "history of drug abuse - LSD, pot." The veteran underwent an examination for suspected drug use in July 1971. The examination report noted that, "[the veteran] appeared to be under the influence of some intoxicant which could cause euphoria, loss of recent memory, pupil dilation and increase in pulse or pulse pressure. The drugs responsible could be either amphetamines or LSD. Less likely would be marijuana." The November 1971 separation examination noted that the veteran had two tattoos on the left arm and two tattoos on the right arm. Evidence of post-service treatment for chronic hepatitis C is contained in VA and private medical records dated from 2003 to the present. Private treatment records from Dr. W.O., M.D., dated in November 2003, reflect a diagnosis of hepatitis C. These records indicate that the veteran denied a history of blood transfusion or intravenous drug use. These records noted, "dirty needle in Navy." The records contains two VA examination reports. In July 2004, a VA physician opined that hepatitis C is not related to service. The examiner reviewed the claims file and addressed the veteran's risk factors for contracting hepatitis C. It was noted that the veteran reported getting tattoos during service. The veteran recalled receiving air gun immunization injections in boot camp and reported that there was blood on his arm and on the arms of other recruits with those immunizations. The veteran denied a history of blood transfusions in the past. The veteran denied other blood exposures, either therapeutic from hospitalized settings or other incidental blood exposures. The veteran denied ever using intravenous drugs. He also denied using any oral or inhaled drugs such as LSD, marijuana, amphetamine or cocaine. The examiner noted that the veteran also denied a history of treatment for alcohol abuse, and there was no history of arrest for driving under the influence. The veteran also denied a history of multiple sex partners. The examiner diagnosed hepatitis C, currently undergoing immune therapy. The examiner noted July 1971 clinical records which showed that the veteran denied an addiction to drugs but stated that he began to use acid during boot camp liberty. The examiner also referred to private medical records from Dr. W.O., M.D. which indicated that the veteran requested a medical marijuana certificate. The VA examiner stated that, based upon a review of the veteran's medical records and service medical records, it was "not as least as likely as not" that the veteran's hepatitis C illness was obtained from an air gun injection received during active duty. The examiner stated, "It is more likely that the veteran incurred the hepatitis C from some other source." Another VA opinion was obtained in August 2007. The examiner was asked to specifically address the veteran's history of tattoos during service. The VA examiner noted review of the claims file. The examiner noted the medical history provided in conjunction with the August 2004 VA examination. The examiner discussed the veteran's risk factors for hepatitis. It was noted that the veteran previously reported that, while he was on board a ship, a hospital corpsman gave him two tattoos on each arm. The veteran denied a history of blood transfusions in the past. The veteran recalled a history of air gun immunizations during boot camp. He denied any other blood exposures, either therapeutic from hospitalized settings or other incidental blood exposures. When asked about illegal or illicit drug use, he specifically denied ever using any intravenous drugs. He specifically denied using any oral or inhaled drugs such as LSD, marijuana, amphetamine or cocaine. He also denied a history of treatment for alcohol, and there (is) no history of arrest for driving under the influence. The examiner concluded that hepatitis C is "as likely as not" related to service and stated that exposure may have occurred from either tattoos obtained or air gun immunization. The examiner stated that determining which was impossible without resorting to mere speculation. An evaluation of the probative value of a medical opinion is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, both VA medical opinions included a thorough discussion of the claims file and the treatment records contained therein. However, the 2004 VA medical opinion did not address whether the veteran could have contracted hepatitis C while getting tattoos in service. Additionally, while the 2004 medical opinion indicated that hepatitis C might be related to "other sources," the examiner did not specifically identify the other risk factors to which hepatitis C could be attributed. The Board finds that the evidence is at least in equipoise regarding whether hepatitis C was incurred during service. A competent medical opinion found that hepatitis C could have been contracted as result of air gun inoculations and tattoos during service. Service medical records noted that the veteran reported drug use, but no specific report of intravenous drug use. The service medical records and post- service medical records are negative for any findings of intravenous drug use, and the veteran denied intravenous drug use in his statements and testimony. While there is some conflicting evidence with regard to answers relating to marijuana or drug use, there is no confirmed intravenous use in the record. Therefore, resolving all reasonable doubt in the veteran's favor, the Board concludes that service connection for hepatitis C is warranted. ORDER Service connection for hepatitis C is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs