Citation Nr: 0815022 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 03-21 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for hepatitis C, with secondary nephropathy, including as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sylvia N. Albert, Associate Counsel INTRODUCTION The veteran served on active duty from November 1967 until July 1970. He served in the Republic of Vietnam from July 1968 until July 1970. This case comes before the Board of Veterans' Appeals (BVA or Board) from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This claim was previously before the Board in December 2004, at which time the Board issued a decision denying the veteran's claim of entitlement to service connection for hepatitis C. The veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court) and, in January 2006, his attorney and VA's Office of General Counsel, representing the Secretary of VA, filed a joint motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order later that month, granting the joint motion, and the case was remanded. The claim came before the Board again in February 2007, at which time it was once more remanded for additional development of the record. The veteran presented testimony in April 2004 at a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript was placed in the claims folder. FINDINGS OF FACT 1. The veteran served in Vietnam during the Vietnam Era. 2. The competent evidence does not show that the veteran's currently diagnosed hepatitis C is causally related to active service, to include exposure to herbicide agents. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by the veteran's active military service, to include exposure to Agent Orange, nor may it be presumed to have been incurred in or aggravated by active service due to exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The VCAA applies in this case. Duty to Notify 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) (West 2002); 38 C.F.R. § 3.159(b) (2007); 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, VCAA notice letters were issued in May 2001, July 2003, and March 2007 to the appellant. The veteran was informed of what evidence was necessary to establish entitlement to the benefit he claimed and advised him of his and VA's respective duties for obtaining evidence. He was told what VA had done to help his claim and what he could do to assist. In addition, the appellant was asked to provide any evidence in his possession that pertained to his claim and informed that a disability rating and effective date would be assigned in the event that he was awarded the benefit sought. Regarding the timing of notice, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided prior to the issuance of the second and third letters, which provided updated and appropriate VCAA notice. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although some of the notice requirements were provided to the appellant after the initial adjudication, the case was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim. 38 U.S.C.A. § 5103A(a)(1) (West 2002). In this case, the claims file contains the veteran's service medical records, personnel records, and reports of VA and private post-service examinations and treatment. Additionally, the veteran's statements in support of his appeal are affiliated with the claims folder and the veteran was afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that in the February 2007 remand, with respect to VA's duty to assist, the RO was instructed to: 1) ... request that the veteran identify the name, date, and address of the provider of a reported gamma globulin injection at age 13, and attempt to obtain such identified records; 2) After securing necessary authorization, obtain the veteran's treatment records from the St. Mary's Hospital Medical Center, concerning any treatment [the veteran] may have received there in 1977 and 1978, not already of record, to include all reports of hospitalization in June 1977. Upon review, the record does not contain treatment reports of the gamma globulin injection or a hospitalization in June 1977 at St. Mary's Hospital. However, the record also shows that VA fulfilled its duty in attempting to locate such information. In a letter to the appellant dated March 2007, VA requested that the veteran provide the name of the doctor who gave him the gamma globulin injection and complete a VA Form 21-4142. The veteran was also asked to provide completed VA Forms 21-4142 for any other private health care providers, and, while he submitted completed forms for two treatment providers, he failed to provide any information regarding the physician who gave him a gamma globulin injection. The veteran was sent an additional letter in April 2007 requesting that he complete a VA Form 21-4142 for St. Mary's Hospital. He failed to do so. In August 2007, the veteran's representative submitted records of the veteran's treatment at St. Mary's Hospital. However, these records are of treatment in 1978, and do not contain a hospitalization in June 1977. Though the veteran failed to respond to the Board's requests, the Board fulfilled its duty to assist in requesting that the veteran provide VA with information and authorization to locate and receive records. Finally, the Board has carefully reviewed the veteran's statements, service records, and medical records, has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. The Board finds 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. Legal Criteria and Analysis Service connection will be granted if the veteran shows he has a disability resulting from an injury incurred or a disease contracted in service, or for aggravation of a pre- existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection will also be approved for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to such agent during that service. 38 C.F.R. § 3.307(a) (2007). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See also Haas v. Nicholson, 20 Vet. App. 257 (2006), appeal docketed, No. 07-7037 (Fed. Cir. Nov. 8, 2006). If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The veteran asserts that service connection is warranted for hepatitis C, with secondary nephropathy, including as secondary to Agent Orange exposure. First and foremost, the Board acknowledges that the veteran served in Vietnam during the Vietnam Era, and, as such, his in-service exposure to herbicides is presumed. However, hepatitis C is not on the list of diseases that VA has associated with Agent Orange exposure, and is not statutorily recognized as presumed to result from herbicide exposure. 38 C.F.R. § 3.309(e). Therefore presumptive service connection for the veteran's hepatitis C, even assuming exposure to Agent Orange, is not warranted. 38 C.F.R. §§ 3.307, 3.309. In the absence of a presumption, in order to establish direct service connection, the veteran must provide evidence of a current diagnosis of hepatitis C, an in-service injury or disease, and a nexus between his hepatitis C and the in- service injury or disease. In the present case, the evidence of record indicates a diagnosis if chronic hepatitis C. The veteran's medical records reflect that, following a needle biopsy of the liver in January 1978, the attending physician commented that his "picture seems most consistent with a viral hepatitis." See January 1978 Treatment Records of St. Mary's Hospital. While this notation is the first in the veteran's records to indicate hepatitis, the veteran's medical records reveal a consistent diagnosis of chronic hepatitis C, including diagnoses made at two separate VA examinations. See October 2001 and January 2008 VA Examination Reports. Based on the foregoing, the Board finds a current disability has been clinically demonstrated, and thus the first element of service connection has been met. Additionally, an in-service injury or disease must be demonstrated. In this case, the veteran's service medical records are lacking in any complaints, diagnosis, or treatment of hepatitis C. At the veteran's enlistment examination in November 1967, there was no finding of hepatitis C. He did not complain of hepatitis C or related symptoms at this examination, and the veteran's service medical records do not show a diagnosis or treatment of hepatitis C during service. Further, his separation examination in July 1970 was again normal, with no notation of hepatitis C. The Board also must assess the veteran's possible exposure to one of the recognized risk factors for hepatitis C, such as blood transfusion, intravenous drug use, tattoos, body piercing, and promiscuous sexual activity. The veteran states that he participated in a combat orientation course upon arrival in Vietnam that involved medical training. As part of the course, he relays, the students would draw blood from one anther using shared needles. He also asserts that he was assigned to the medics and assisted in surgery on troops and civilians. However, the veteran's personnel records reflect that his military occupational specialties (MOS) were that of light weapons infantryman and general clerk, and does not show that the veteran received any medical training. The veteran has denied any promiscuous sexual activity, and reported that he received a pre-service gamma globulin injection. In addition, while the veteran asserts he received his tattoo prior to service, neither the veteran's November 1967 enlistment examination nor his July 1970 separation examination note the presence of a tattoo. The first notation of a tattoo found in the veteran's records is in a January 1978 record of St. Mary's Hospital. Finally, the Board also notes that the record contains contradictory information regarding possible intravenous drug use in service. In his April 2004 hearing, the veteran stated that on one single occasion he shot up morphine in service. He remarked that he never used intravenous drugs prior to or following service. However, in an earlier 1984 treatment report, the veteran had admitted to two episodes of illicit intravenous drug use, both occurring in approximately 1973, which would have followed separation from service. Even if intravenous use of drugs in service is conceded, the use of illegal drugs during service, for the purpose of enjoying the intoxicating effects of the drug, may not serve as the basis for compensation benefits. 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2007). While it is acknowledged that under 38 C.F.R. § 3.301(c)(3) the isolated and infrequent use of drugs will not be considered willful misconduct, it is not clear from the evidence that drug use was indeed isolated or infrequent. Nevertheless, the Board notes that the veteran's service personnel records establish that he served as a light weapons infantryman in service. As such, the Board finds that the veteran's duty was consistent with the veteran's contentions that he was exposed to the blood of other service members. In addition, the veteran is presumed to have been exposed to herbicide agents while in Vietnam during the Vietnam Era. Therefore, the Board finds that the second element of service connection, an in-service injury or disease, has been fulfilled. The last element of service connection required is a nexus between the veteran's current disability and the in-service injury or disease. The veteran maintains that his hepatitis C was caused by the exposure to the blood of others in service, or, alternatively, from exposure to Agent Orange. In this case, the record contains the opinions of multiple examiners who examined the veteran. In January 2008, the veteran was afforded a VA medical examination. The physician, D.S., M.D., reviewed the claims file, examined the veteran, and evaluated the veteran's exposure to other risk factors of hepatitis C. The physician concluded that the issue of whether or not the veteran's hepatitis C was caused by active service could not be resolved without speculation. However, Dr. D.S. did assert that the veteran's hepatitis C "is definitely not caused by Agent Orange exposure." In addition, the Board notes that the veteran's nephrologist, D.C., M.D., submitted a letter in May 2001, which opined that the veteran's hepatitis C was acquired in Vietnam. In a case such as this, with vying medical opinions, it is the prerogative of the Board to determine what credibility and weight to attach to each. The probative value of a medical opinion is generally based on the scope of the examination, as well as the relative merits of the expert's qualifications and analytical assessments. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. The adjudicator may favor one expert's opinion over another as long as an adequate statement of reasons and bases is given. Owens v. Brown, 7 Vet. App. 429, 434 (1995). Factors to consider when comparing expert medical opinions include: (1) the basis for the physician's opinion; (2) the physician's knowledge of the veteran's accurate medical and personal relevant history; (3) the length of time the physician has treated the veteran; (4) the physician's experience and expertise; and (5) degree of specificity and of certainty of the physicians opinion. The Board evaluates the various medical opinions with these factors in mind. The Board finds that the January 2008 VA examiners opinion has significant probative weight since it was based on a review of the entire record. The Board recognizes that the VA examiner undertook only one clinical examination of the veteran. However, the examination was thorough and appropriate, and considered the veteran's assertions. Further, the examiner also inspected the veteran's comprehensive medical history, as well as service medical and personnel records. The Board also notes that the examiner's opinion was well-reasoned and examined the alternative risk factors for hepatitis C. Importantly, the basis for the opinion was clearly stated. The VA examination report, in turn, is entitled to a significant amount of probative weight. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Conversely, the letter of the veteran's private nephrologist, D.C., M.D., carries less probative weight. The Board recognizes that Dr. D.C. has treated the veteran for his hepatitis C for over twenty years and has extensive knowledge of the veteran's current condition. However, the Board also notes that all information regarding the veteran's history was relayed by the veteran himself. There is no indication that the doctor examined the veteran's service medical records, or considered the veteran's possible exposure to the various risk factors of hepatitis C. In addition, the nephrologist's conclusion seems to be purely speculative, and there is no indication of the basis for the conclusion. Therefore the Board finds that the opinion of the veteran's personal nephrologist is entitled to less probative weight than that of the VA examiner. The probative evidence of record does not relate the veteran's hepatitis C to his time in service. The veteran contends that his hepatitis C is service related, and contracted due to exposure to blood or, alternatively, herbicidal agents. However, the veteran is a lay person with no medical training, and as such is not competent to express a medical opinion as to causation. Only medical professionals are competent to express opinions as to medical causation, and thus the veteran's opinion lacks probative value. Espiritu, 2 Vet. App. at 494. While the veteran's private nephrologist opines that the hepatitis C is service related, the veteran's opinion and that of the nephrologist are outweighed by the highly probative opinion of the VA examiner, who finds that reaching a conclusion regarding whether the veteran's hepatitis C was due to service would be purely speculative. Furthermore, there is no evidence of record relating the veteran's hepatitis C to his presumed exposure to herbicides in Vietnam. In fact, the record contains a medical opinion which unequivocally states that the veteran's hepatitis C is "definitely not caused by Agent Orange exposure." See January 2008 VA Examination Report. There is therefore no competent evidence of record finding that the veteran's hepatitis C is causally related to his service, to include exposure to Agent Orange and, thus, the third requirement of service connection is unmet. Therefore, the Board finds that service connection for hepatitis C is not warranted. The competent evidence does not attribute hepatitis C to service, to include herbicide exposure. In addition, a granting of presumptive service connection due to herbicide exposure is precluded in this case, as the veteran has not been diagnosed with disability among the diseases listed in 38 C.F.R. § 3.309(e). 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 is given to the claimant. See 38 U.S.C.A. § 5107(b). After careful consideration, the Board finds that the preponderance of the evidence in this case falls against the claim, making the benefit of the doubt rule inapplicable. ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs