Citation Nr: 0814419 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 07-24 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from July 1971 to July 1974 and from May 1980 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. Hepatitis C was not present during service. 2. The evidence does not show that the veteran's current hepatitis C is related to service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Entitlement to Service Connection for Hepatitis C Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure to blood by a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Letter 211B (98-110) November 30, 1998. In a VA "Fast Letter" issued in June 2004 (Fast Letter 04- 13, June 29, 2004), VA noted that a rating decision had been issued that was apparently based on a statement incorrectly ascribed to a VA physician to the effect that persons who were inoculated with a jet injector were at risk of having hepatitis C. The fast letter then identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). The letter also detailed that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. The document further indicated that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. It also noted that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting, but indicated that it was "essential" that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the veteran's hepatitis C. However, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). Establishing service connection, therefore, generally requires (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) medical evidence of a nexus between the claimed in- service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). The Court of Appeals for Veterans Claims (Court) has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 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 is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran contends that he contracted hepatitis C in service when he was assaulted by fellow servicemen and injected with heroin with a contaminated needle or, in the alternative, when he received vaccination shots from an injection gun. Post-service treatment records indicate that the veteran was diagnosed with hepatitis C in October 2003. The Board has reviewed all of the evidence of record in this case, and concludes that hepatitis C was not present during service. The veteran's service medical records (SMRs) reveal that the veteran underwent a clinical evaluation and physical examination in May 1971 prior to entering service for his first period of active duty. The clinical evaluation was normal and no references to hepatitis C were included in the examination report. The veteran did not indicate at that time that he had jaundice, hepatitis, stomach, liver, or intestinal problems. The clinical evaluation upon separation from the veteran's first period of active duty, performed in March 1974, was normal and made no reference to hepatitis C, liver, stomach, intestinal problems, or tattoos or piercings. In addition, the veteran's service medical records do not show any reported consequences from routine inoculations. In April 1980, prior to the veteran's enlistment for his second period of active service, the veteran underwent a clinical evaluation and physical examination. The clinical evaluation was normal and made no reference to hepatitis C. The veteran did not indicate at that time that he had jaundice, hepatitis, stomach, liver, or intestinal problems. Upon separation from the second period of active duty, the veteran's examination upon separation was normal, made no reference to hepatitis C, and did not indicate that the veteran had any tattoos or piercings. The SMRs reveal that the veteran sought treatment for drug addition in April 1981. Upon intake into the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) the veteran indicated that he used amphetamines once a week, opiates once a day, barbiturates two to six times a week, other cannabis sativa daily, alcohol daily, and "Val-Lib- Darvon" two to three times a month. The veteran reported at that time that he did not take any of these substances via needle. A May 1981, service treatment note indicated that the veteran was a known heroin user. In a memorandum to the veteran's Battalion Commander by the veteran's Company Commander, dated in May 1981, the author stated that the veteran had been detoxified twice while on active duty in Germany. In a June 1981 sworn statement, included with the veteran's SMRs, the veteran admitted that he was having drug problems. The veteran's post-service medical records reveal that he underwent a coronary artery bypass graft times there in November 1994. The veteran has been treated by the VA medical center in Mountain Home, Tennessee, since August 2006. In August 2003, the veteran was noted to have left chest pain and dyspnea with pain on exertion. In September 2003, a VA outpatient treatment note indicated that the veteran consumes three to four alcoholic drinks two to three times a week, had hepatitis risk factors of a tattoo or multiple body piercings, and had elevated liver functions. The veteran was subsequently diagnosed with hepatitis C in October 2003 and has been consistently treated for hepatitis C by VA since his diagnosis. There is no indication of the etiology of the veteran's hepatitis in his medical records. In a statement, dated in September 2006, the veteran's wife described the veteran's condition. She indicated that the veteran's doctor stated that the veteran had had hepatitis for 35 years. The veteran's wife reported that the disease has affected her husband's heart and memory. She stated that the disease causes her husband to be constantly fatigued and to lose weight. The veteran's wife does not corroborate the veteran's reported incident in service. In a statement, dated in September 2006, a fellow serviceman, R.S., stated that he served with the veteran in Germany. He indicated that drug use was rampant while they were stationed in Germany and that the Battalion Commander had offered an honorable discharge to anyone who wanted out of the Army and who had a drug problem. R.S.'s statement does not corroborate the veteran's reported incident in service. In a statement, dated in October 2006, the veteran's sister described the veteran before and after his active service. She stated that prior to entering the military the veteran completed high school, obtained some technical training, and worked full-time while living at home. The veteran's sister indicated that the veteran did not abuse drugs prior to entering the military. She reported that upon separation, the veteran became secretive and lied about where his money was going and could not keep a job. The veteran's sister stated that the veteran later reported to her that he was held down by fellow servicemembers and injected with heroin. The veteran has submitted articles on the issue of hepatitis C and the transmission of hepatitis C via jet injection. The articles indicate that symptoms of hepatitis C may take up to 30 years to appear. The articles report that upon a visit to Parris Island, South Carolina, the Armed Forces Epidemiological Board (AFEB) noted that during high volume recruit immunization using jet injectors the nozzle was frequently contaminated with blood and that sterilization procedures were frequently inadequate or not followed. The Board notes that these articles are not specific to the veteran's case. The veteran served with the United States Army not with the United States Marine Corps which trains at Parris Island, South Carolina. In addition, there is no indication from the articles that the veteran's vaccines were given via jet injection or that, if they were, the jet injector was contaminated or used inappropriately when he received his vaccinations. In the veteran's testimony before the undersigned member of the Board at a hearing held in January 2008, the veteran reported that he was assaulted by fellow servicemen and injected with heroin with a contaminated needle. The veteran stated that he was sent for treatment by his commanding officer at that time; however, he doubted there was any record of this treatment in the SMRs. The veteran stated that he did not have any other risk factors for hepatitis C. He reported that he does not have any tattoos, has not gotten a blood transfusion, and did not share razors or toothbrushes while in service. The veteran indicated that during his November 1994 coronary artery bypass surgery his blood was "recycled" and he was not given any transfusions. After reviewing all the evidence of record, the Board concludes that there is no basis for linking hepatitis C, which was diagnosed many years after separation from service, to his period of service. The Board notes that in his claim, subsequent statements in support of his claim, and testimony before the undersigned member of Board, the veteran explained his own beliefs concerning the manner in which he likely contracted hepatitis C. However, lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Furthermore, there exists no medical opinion in the claims file regarding the circumstances surrounding the manner in which the veteran contracted hepatitis C. It would be speculative to link the current hepatitis C to factors in service. Particularly, as the evidence in the claims folder does not support the veteran's contention of being assaulted and injected with heroin with a contaminated needle, other than the veteran's statements. His fellow servicemember's statement did not contain any reference to the veteran's reported incident even though they worked together and shared a room in the barracks. The veteran's sister's reported that the veteran told her that he had been assaulted and injected with heroin while in service. However, the veteran's sister's statement indicated that the veteran related this information to her and that he told her about this incident long after separation from service. In light of this and other inconsistencies in the record such as the veteran reporting that he was not a drug addict or alcoholic and did not use heroin in service when contemporaneous SMRs document his admitted drug abuse, the Board finds that the appellant's statements lack credibility. The Board notes that the veteran's sworn statements and treatment in service conflict with his subsequent statements regarding drug addiction and his report of risk factors conflict with those noted during VA medical treatment. There is also no evidence that the veteran suffered any consequences of the routine vaccinations he received upon service entry nor does the medical evidence indicate a definitive relationship between jet inoculations and the development of hepatitis C. The Board finds that hepatitis C was not present during service, and it has not been shown by competent evidence that it developed after service as a result of a service-related incident. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. Accordingly, the Board finds that hepatitis C was not incurred in or aggravated by service. II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 notice from 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in August 2006 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. 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. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the medical records indicate that the veteran has current disability. The second element to be addressed is whether the evidence establishes that the veteran suffered an in-service event, injury or disease. The veteran claims that he contracted hepatitis C in service after being assaulted by fellow servicemen and injected with heroin with a contaminated needle. However, the service medical records do not reflect complaints or treatment for hepatitis C or for the incident the veteran related and the Board has also found that assertion not credible. There is no evidence that the veteran had a blood transfusion, had a tattoo, participated in unsafe sexual practices, shared a razor, or had any non willful misconduct risk factors for acquiring hepatitis C while in service. The veteran did undergo a coronary artery bypass graft in 1994; however, there is no evidence that he received a blood transfusion at that time. There is no competent evidence linking hepatitis C to any incident of service. As the Board ultimately finds in this case that the preponderance of the evidence weighs against the veteran's claims for service connection, a VA examination is not required in this case. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). VA's duty to assist includes the responsibility to obtain any relevant records from the SSA. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). In this respect, the veteran reported in a claim for cardiac disease, dated in May 2004, that he has been receiving SSA disability benefits since June 1994. However, the veteran was not diagnosed with hepatitis C until October 2003. Hence, any outstanding SSA records would not assist the veteran in demonstrating entitlement to service connection for hepatitis C. In this regard, VA is not required to search for evidence, which even if obtained, would make no difference in the result. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (quoting Colvin v. Derwinski, 1 Vet. App. 171 (1991). See also Soyini v. Derwinski, 1 Vet. App. 541 (1991) (declining to require strict adherence to technical requirements and impose additional burdens on VA when there was no benefit flowing to the claimant). Consequently, further efforts to obtain these records are not warranted before adjudicating the veteran's claim of entitlement to service connection for hepatitis C. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient records from August 2003 to August 2006. The veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for hepatitis C, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs