Citation Nr: 1007649 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-33 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Schroader, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to March 1970. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a January 2005 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Columbia, South Carolina that denied the Veteran's claims of entitlement to service connection for hepatitis C and to compensation under 38 U.S.C.A. § 1151 for hepatitis C. The Board notes that jurisdiction in this case was subsequently transferred to the RO located in St. Petersburg, Florida. In December 2008, a Travel Board hearing was held before the undersigned Veteran's Law Judge at the St. Petersburg, Florida RO. A transcript of that proceeding has been associated with the claims folder. In March 2009, the Board remanded the above issues for further development, which is complete and has been associated with the claims file. In that remand, the Board observed that, although the claim for hepatitis C was identified on the title page of the January 2005 rating decision as being one for service connection, it was clear from the text of that decision that the claim was adjudicated both for service connection and for compensation under 38 U.S.C.A. § 1151. This interpretation was also found to be consistent with the Veteran's contentions, and the issue was broadened on the title page of the Board remand to encompass both theories of entitlement. FINDINGS OF FACT 1. The Veteran's hepatitis C is not shown by competent medical evidence to be etiologically related to a disease, injury, or event in service. 2. The Veteran's hepatitis C is not proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing colonoscopy, polypoid mass resection, and lysis of adhesions procedures between April and May 2003, or the result of an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. The Veteran's hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009). 2. The criteria for compensation under 38 U.S.CA. § 1151 for hepatitis C are not met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2009); 38 C.F.R. § 3.361 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claims for service connection for hepatitis C and for compensation under 38 U.S.C.A. § 1151 for hepatitis C, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that VCAA letters dated in June 2004 and September 2004, as well as a July 2006 notice reflecting how VA determines disability ratings and effective dates (Dingess), fully satisfied the notice requirements of the VCAA with respect to the Veteran's claims. In particular, the Board notes that these letters advised the Veteran how to substantiate both his claim for service connection and his claim for compensation pursuant to 38 U.S.C.A. § 1151. Following the July 2006 notice letter, the Veteran's claims were readjudicated by way of a July 2006 Statement of the Case (SOC) as well as January 2008, June 2008, August 2008, and November 2009 Supplemental Statements of the Case (SSOCs). The Board also concludes that VA's duty to assist has been satisfied. All of the Veteran's service treatment records and VA treatment records have been associated with the claims file, and the Veteran has not identified any relevant private treatment record that he wished for VA to obtain. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with a VA examination in July 2009 pursuant to the Board's March 2009 remand, and the examination report has been associated with the claims file. Likewise, pursuant to the Board's remand, the RO readjudicated the Veteran's claims by way of the November 2009 SSOC. The VA examination report reflects that the examiner had an opportunity to review the entire claims file, including all of the Veteran's service and VA treatment records, and to personally elicit a history from the Veteran and examine him, and he provided a clear rationale for his conclusions. Based thereon, the Board finds this VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Service Connection for Hepatitis C Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" -the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he contracted hepatitis C during his active service in the United States Air Force in Thailand between March 1969 and March 1970. See Claim, July 2004; Hearing Transcript, December 2008 at 4-5. More specifically, he alleges that he incurred the disease from unprotected intercourse in service. See id. at 5. As an initial matter, the Board notes that the Veteran's service treatment records are silent as to any symptoms of, treatment for, or diagnosis of any type of hepatitis during service. The Board also notes that none of the service treatment records reflect that the Veteran had any tattoos or scars at induction or separation. In November 2002, the Veteran sought care at the VA medical center (VAMC) located in Orlando, Florida complaining of rectal bleeding. A December 2002 VA treatment record reflects that a serum specimen tested positive for hepatitis C. A January 2004 VA treatment record reflects that the Veteran presented for a consultation for treatment of his hepatitis C. The report reflects that he reported a history of unprotected sex while stationed in Thailand (between March 1979 and March 1970). It also reflects that he admitted to intravenous (IV) drug use and nasal cocaine use during 1970 (although he did not specify whether this was during or after service). A July 2004 Risk Factors for Hepatitis Questionnaire completed by the Veteran reflects that he reported that he had engaged in unprotected sexual activity, but he denied having used IV drugs or nasal cocaine. A July 2009 VA examination report reflects that the Veteran adamantly denied on examination any history of IV drug use, cocaine use, or high risk sexual activity. Rather, the report reflects that the Veteran reported on examination that he strongly believed that he contracted the disease either during his April 2003 colonoscopy or during the May 2003 colon procedures, both performed at the VAMC. The examiner noted that he reviewed the claims file, including the Veteran's service treatment records and VA treatment records. He noted that in January 2004 the Veteran reported having unprotected intercourse in Thailand during service as well as IV drug use and snorting cocaine during 1970, but, on examination, the Veteran denied all of these risk factors. The report reflects that the examiner opined that the relationship of the Veteran's hepatitis C to service was "after service." At the same time, however, the examiner noted that due to the contradictory history and facts reported by the Veteran, he was unable to opine as to the etiology of the Veteran's hepatitis C without resorting to mere speculation. Based on a review of the Veteran's complete claims folder, the Board finds that the competent medical evidence is against the Veteran's claim for service connection for hepatitis C. In reaching this conclusion, the Board has considered the Veteran's own lay belief that there is an etiological relationship between his hepatitis C and his military service. Certainly, there are instances in which lay testimony can serve as probative evidence in establishing an association between service and the claimed disability. For example, a lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder, and their lay testimony as to a continuity of symptomatology. However, the Board finds that a lay person is not be competent to offer an opinion on a matter clearly requiring medical expertise, such as linking the Veteran's hepatitis C to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the Veteran's lay beliefs alone can serve to establish any association between his hepatitis C disease and his military service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). Furthermore, the Board must also consider the Veteran's own conflicting statements as to possible risk factors. For example, during the course of outpatient treatment in 2004, the Veteran admitted to having had unprotected sex in Thailand and having used IV drugs and having snorted cocaine in the past. Thereafter, during his personal hearing, the Veteran and his representative discussed his history of unprotected sexual contact in service while in Asia, but no mention of past drug use was made. Most significantly, during his subsequent VA examination, it was noted that the only risk factor the Veteran admitted to was his past surgery, and he denied any history of either drug use or high risk sexual activity. Thus, even if it was presumed that risk factors for hepatitis C were of such common knowledge as to be within the competency of a lay person to testify, the Board must find the Veteran's reports not credible in light of his conflicting statements. In addition, to the extent that the Veteran believes that he was told by a VA physician that he incurred hepatitis C as a result of unprotected sexual intercourse while serving in Thailand, it must be noted that the Court has held that a lay person's statement about what a physician told him or her, i.e., "hearsay medical evidence," cannot constitute medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Veteran's report is particularly unreliable in a case such as here, where the Board has found that his conflicting reports as to his history significantly call into question his credibility. Therefore, the Board has found the most probative evidence of record to be the report of the VA examination, during which a competent health care provider reviewed the Veteran's documented medical history and conducted a thorough physical examination and interview. That examiner concluded that due to the inconsistent reports of hepatitis risk factors by the Veteran, he could not determine whether the Veteran's hepatitis C was related to service without resort to speculation. The Board notes that a possible connection or one based on "speculation" is too tenuous a basis on which to grant service connection. The reasonable doubt doctrine requires that there be a "substantial" doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102 2009); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that any medical link that is speculative, general or inconclusive in nature is of no probative value and not a sufficient basis to grant service connection). In this regard, the Board recognizes that the Court has held that, in some circumstances, where an examiner is unable to give an opinion without resorting to mere speculation, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). However, in this instance, the examiner specifically explained that he could not offer such an opinion due to the conflicting statements provided by the Veteran in the past regarding his possible risk factors. Specifically, the examiner noted that the only risk factor the Veteran admitted to was his past surgery, and he denied any history of drug use or high risk sexual activity. However, it was also noted that the Veteran had admitted during the course of outpatient treatment in 2004 to having had unprotected sex in Thailand and having used IV drugs and having snorted cocaine in the past. Thus, it is clear from the overall text of the examiner's finding that his unwillingness to offer a more conclusive opinion was due to the Veteran's contradictory statements regarding his past drug use, a fact the Board has also observed. In light of this rationale, the Board believes that the examiner's notation constitutes far more than just a non-opinion, but rather, a clear and persuasive explanation as to why any suggestion of a relationship between the Veteran's hepatitis C and his military service in this case would be one of pure speculation or remote possibility. Furthermore, the Board also notes that the earliest evidence of a diagnosis of hepatitis C is the December 2002 VA treatment record reflecting that the Veteran tested positive for the disease. As noted above, the Veteran himself testified at the Board hearing that he had not sought any treatment prior to that time (although the Board notes that the Veteran stated "January 2003" at the hearing rather than December 2002), and was unaware of having hepatitis C. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The amount of time that passed between service and the first documented diagnosis of record of hepatitis C is evidence that weighs heavily against the Veteran's claim. In summary, given the amount of time that passed between the Veteran's discharge from service in March 1970 and the first diagnosis of record of hepatitis C in December 2002, the persuasive VA medical opinion discussed above explaining why any suggestion of a relationship would be speculative under the circumstances of this case, and the inconsistent reports of the Veteran of his hepatitis risk factors, including his reported history of IV drug use and cocaine use, the Board finds that the preponderance of the evidence is against the claim of service connection for hepatitis C. As the preponderance of the evidence is against this claim, the "benefit-of-the-doubt" rule does not apply, and the claim for service connection for hepatitis C must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board also notes in passing that when the Veteran reported a history of IV drug use and cocaine snorting it was specified that this occurred in a time period during which he may have been on active duty. It must be noted that, regardless of whether this occurred during service, direct service connection may not be granted when a disability is the result of a veteran's own willful misconduct; and, for claims filed after October 31, 1990, when a disability is the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a) (2009). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), VAOPGCPREC 2-98 (1998). Thus, even if it was accepted that this drug use occurred in service, service connection for hepatitis C due to IV drug abuse or cocaine use would be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. 38 U.S.C.A. § 1151 Under the provisions of 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the Veteran's own willful misconduct or failure to follow instructions, compensation is awarded in the same manner as if the additional disability or death were service connected. 38 U.S.C.A. § 1151 (West 2002 and Supp. 2009). Pursuant to 38 C.F.R. § 3.361, to determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b) (2009). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1) (2009). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2009). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3) (2009). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2009). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(c) and (d)(1) (2009). The Veteran argues in the alternative that he incurred hepatitis C as a result of surgical procedures performed at a VA medical center between in April and May 2003. As an initial matter, the Board notes that the Veteran does not contend that he failed to give informed consent to the surgical treatments. As noted above, in November 2002, the Veteran sought care at the VA medical center complaining of rectal bleeding, and in December 2002, a serum specimen tested positive for hepatitis C. An April 2003 VA operative report reflects that the Veteran underwent a colonoscopy in order to determine the cause of bleeding. The post-operative diagnosis was a polypoid mass of the colon, along with colon polyps. A May 2003 VA operative report reflects that the Veteran underwent a resection of the polypoid mass as well as lysis of the polyp adhesions. See VA Addendum to Intraoperative Report, August 2003. A January 2004 VA treatment record reflects that the Veteran presented for a consultation for hepatitis C treatment. Subsequent VA treatment records dated January 2004 through July 2004 reflect that the Veteran underwent 24 weeks of therapy consisting 150mcg per week (every Thursday) of Peg- intron, as well as 1200 mg per day of Ribavuirin. At the initiation of treatment, VA treatment records reflect that the Veteran's HCV HGI was 6,540,000 (baseline). After 24 weeks of treatment, his HCV-RNA viral load was less than 30. See, e.g., VA Treatment Record, November 2004. At the December 2008 Board hearing, the Veteran testified that he was not experiencing any problems as a result of his hepatitis C ("no, none at all."). See Hearing Transcript at 6. The July 2009 VA examination report reflects that the examiner opined that it was not possible for the Veteran to contract hepatitis C from the April and May 2003 procedures because he already had hepatitis C back in December 2002 (per the serum test result). The examiner specifically opined that the Veteran's hepatitis C predated the 2003 procedures and that it was not the result of negligence or some similar instance of fault on the part of VA. The Board can find no medical evidence of record supporting the contention that the Veteran's hepatitis C is a consequence of any action or inaction on the part of VA in performing surgical treatment. The only medical opinion of record with regard to this matter is the above July 2009 VA examiner's opinion, which specifically provides that the Veteran's hepatitis C predated his April and May 2003 procedures performed at the VAMC and "therefore is not the result of negligence or some similar instance of fault on the part of VA." The Board acknowledges the Veteran's July 2004 statement in which he asserted that VA failed to notify him of his positive hepatitis C test result until September 2003, about 9 months after he tested positive at the VAMC for the disease. It appears that the Veteran was implying that such period of time caused him additional disability. See 38 C.F.R. 3.361(c)(2) (2009). Certainly, it is conceivable that a failure to notify someone of a disease could result in delayed treatment, which, in some circumstances, could cause additional disability. As noted above, however, the Veteran received 24 weeks of treatment at the VAMC between January 2004 and July 2004, and no symptoms or manifestations of this disease were noted during that time, nor have any been noted since that time by the Veteran or in the medical evidence of record. Thus, despite the Veteran's implied argument, there is no medical evidence of record suggesting additional disability, and no credible lay evidence of record of any additional disability in the form of worsened symptomatology. The Board concludes that the preponderance of the evidence is against the claim of entitlement to compensation under 38 U.S.C.A. § 1151. As the preponderance of the evidence is against the claim, the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for hepatitis C is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs