Citation Nr: 1036091 Decision Date: 09/24/10 Archive Date: 09/30/10 DOCKET NO. 07-03 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1977 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2005 and May 2006 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Following issuance of the September 2006 statement of the case, the Veteran submitted a letter the following month in reply to a February 2006 VA notification letter. After careful review, the Board finds that this letter does not meet the criteria for withdrawal of an appeal. See 38 C.F.R. § 20.204. In January 2007, the Veteran filed a VA Form 9 substantive appeal referring only to the issue of IBS. Nonetheless, subsequent actions by both VA and the Veteran treated the hepatitis C issue as being on appeal. The U.S. Court of Appeals for Veterans Claims (Court) has recently indicated that VA waives any objection to the adequacy of the appeal by treating rating matters as if they were part of the appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Thus, the subsequent actions of VA treating the issue hepatitis C issue as on appeal vitiate the January 2007 substantive appeal limiting the issue to IBS. During the pendency of the appeal, the RO increased the Veteran's disability rating for IBS to 10 percent. As a higher schedular rating is available, the issue remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The persuasive evidence is against a finding that hepatitis C was incurred during active military service. 2. The Veteran's IBS symptoms are most accurately characterized as frequent episodes of bowel disturbance with abdominal distress. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2009). 2. The criteria for entitlement to an evaluation in excess of 10 percent for irritable bowel syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.114, Diagnostic Code 7319 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service connection for Hepatitis C Laws and Regulations 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 the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, certain disabilities, such as degenerative joint disease/ arthritis will be presumed to have been incurred during service, if the disability is manifested to a compensable degree within a year following separation from service. 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, supra. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr, supra.; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, supra. (lay person may provide eyewitness account of medical symptoms). The Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, supra. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra. (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 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. 38 C.F.R. § 3.303(d). Evidence The Veteran's service treatment records do not include any hepatitis diagnosis. Rather, the Veteran contends that he was exposed to hepatitis while working as a medic at a military hospital. The Veteran's military occupational specialty is listed as a medical specialist. VA treatment records include several consultations for hepatitis C treatment starting around 2004. A consultation note, dated March 2004, refers to intranasal drug use as the hepatitis C etiology. Subsequently, a March 2005 note lists the etiology as unknown. The Veteran underwent a VA hepatitis C examination in June 2008. The examiner reviewed the claims file and noted the Veteran's history. Presently, the Veteran complained of fatigue and malaise. He asserted that he was exposed to contaminated blood during service and denied post-service blood exposure or IV drug use. He affirmed using intranasal cocaine. Clinical examination was normal. Serological testing confirmed the presence of hepatitis C. The examiner stated that there was a possibility of hepatitis C exposure during service; however, due to subsequent intranasal cocaine use, the exact relationship between military service and hepatitis C is not strongly supported. VA also obtained a February 2010 medical opinion from a VA physician summarizing the Veteran's present health condition. After careful review of the record, she concluded that the Veteran's hepatitis C condition had not progressed in the past five years and that he is currently asymptomatic. Analysis As the record shows that the Veteran served as a medic during service, the Board finds the Veteran credible in his reports of exposure to blood during service. The remaining issue is determining whether a nexus exist between the hepatitis C diagnosis and in-service blood exposure. The Board must weigh all lay and medical evidence of record in making such a determination. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). Although the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself; the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Id. Regarding the Veteran's contentions of a nexus between service and development of hepatitis C, the Board notes that the Veteran is competent to attest to factual matters of which he had first- hand knowledge, such as blood exposure. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran has not been shown to have the experience, education, or training, to report on the etiology of hepatitis based on scientific principles. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Davidson v. Shinseki, 581 Vet. App. 1313 (Fed. Cir. 2009). Thus, the Board considers the Veteran's statements regarding the etiology of hepatitis C as competent lay evidence. See Layno v. Brown, 6 Vet. App. 465 (1994). However, these statements are not considered competent medical evidence of a nexus. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). In this instance, the only competent medical evidence regarding an etiology is the June 2008 VA examination report. The VA examiner in June 2008 characterized the military service etiology as "a possibility" and then noted post service intranasal cocaine use as decreasing the chances of such an etiological relationship. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1992) (Service connection may not be based on resort to speculation or remote possibility). The Board finds this opinion cannot be construed as expressing a positive relationship in terms of scientific certainty. Thus, the Board finds that the competent medical evidence is against a finding of a nexus. The Board has considered the Veteran's lay statements as asserting a nexus and as asserting continuity of symptomatology. 38 C.F.R. § 3.303(b). However, the Board finds the Veteran's assertion less plausible. Owens, supra.; Buchanan, supra. (although lay evidence can be sufficient by itself to support a claim, the Board retains discretion to weigh all evidence of record). The record shows that the Veteran did not receive treatment for hepatitis C until many years following service. In the intervening time period, the Veteran was positive for a noted hepatitis C risk factor of intranasal cocaine use. See VBA Training Letter 211A (01-02), dated April 17, 2001. Based on careful review of the record, the VA examiner declined to express a positive opinion in scientific terms; rather, she noted a "there is a possibility" of in-service hepatitis C exposure. Owens, supra.; Buchanan, supra. After careful consideration of the entire record, the Board rejects the Veteran's lay contention of a nexus. See id. In sum, after careful consideration of both lay and medical evidence, the Board concludes that the record weighs against a finding of a nexus between exposure to blood during service and the subsequent development of hepatitis C. The claim is denied. 38 C.F.R. § 3.303. II. Rating in excess of 10 percent for service connected IBS Laws and regulations Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran is presently in receipt of a 10 percent rating for IBS pursuant to Diagnostic Code 7319. Under Diagnostic Code 7319, a 10 percent rating is assignable for moderate irritable colon syndrome; frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is assignable for severe irritable colon syndrome; diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Evidence The Veteran initially underwent a VA IBS examination in May 2005. He reported having severe constipation, but rarely experiencing diarrhea. Clinical examination showed normal bowel sounds. The examiner commented that there was no other stigmata of the liver or gastrointestinal disease. He diagnosed IBS and noted a possible splenic flexure syndrome. In August 2005, a VA primary care comprehensive assessment showed the Veteran complaining of occasional abdominal cramps, but not reporting blood in his stools. He took over the counter medicine for constipations symptoms. Clinical examination did not show any abdominal pain, change in bowels, or nausea/vomiting. VA treatment notes, dated February 2006, showed that the Veteran did not report present abdominal pain, but noticed blood in his stools. Later in April and May 2006 VA treatment notes the Veteran reported persistent flatulence and abdominal pain occurring two to three times per week. Subsequent VA treatment notes showed that the Veteran continued to experience chronic intermittent abdominal pain and stool disorders. The Veteran underwent a VA IBS examination in February 2010. He reported having intermittent constipation and diarrhea in every two to three months and having abdominal pain about three to four times per week. Abdominal pain was not present during clinical examination. The examiner diagnosed active IBS. An addendum to the VA examination showed that a VA physician concluded the Veteran had dyspepsia due to IBS in addition to large amounts of flatulence, diarrhea, heartburn, and abdominal pain. The abdominal pain occurred approximately four to five times per week and diarrhea occurred once or twice a day. Analysis The Veteran contends that his IBS symptoms warrant a 30 percent disability rating pursuant to Diagnostic Code 7319. A 30 percent rating is assignable for severe irritable colon syndrome; diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Meanwhile, a 10 percent rating contemplates moderate irritable colon syndrome; frequent episodes of bowel disturbance with abdominal distress. See id. The record confirms that the Veteran has experienced regular episodes of diarrhea, constipation, and abdominal pain for several years. Diagnostic Code 7319 differentiates between moderate and severe symptoms based upon frequency. See id. The record reflects that the Veteran experiences episodes of abdominal distress and constipations or diarrhea on a regular basis. Nonetheless, the evidence at present does not show that these symptoms are constant. Notably, the February 2010 VA examination report and VA treatments notes from August 2005 and February 2006 reflected that the examiners did not find abdominal pain during clinical examination. Most recently, a physician commented that the Veteran experienced diarrhea once or twice a day. While these symptoms are certainly frustrating for the Veteran, the Board finds the evidence most closely approximates the criteria for a 10 percent rating. The criteria for a 30 percent rating under Diagnostic Code 7319 expressly describe "more or less constant abdominal distress." 38 C.F.R. § 4.114, Diagnostic Code 7319. The Veteran does not assert constantly experiencing abdominal pain or diarrhea; rather he reports episodic symptoms on a frequent basis. The Board places great weight on the medical records showing no present abdominal pain on multiple occasions. See Owens v. Brown, 7 Vet. App. 429 (1995); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); see February 2010 VA examination report; VA treatments notes dated August 2005 and February 2006. After careful consideration, the Board finds that the evidence does not show constant symptoms contemplated by the 30 percent criteria and declines to assign a rating in excess of 10 percent for IBS. See id.; Owens, supra.; Buchanan, supra. The claim is denied. The record shows that the Veteran is presently gainfully employed. Thus, the issue of entitlement to total disability based upon individual unemployability (TDIU) is not for present consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board has considered whether there is evidence showing that the Veteran's service-connected IBS should be referred for assignment of an extraschedular rating. The record does not show that this disability has markedly interfered with his employment status beyond that interference contemplated by the assigned rating, and there is also no indication that this disability has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. In the absence of an unusual disability picture such as one involving marked interference with employment or frequent hospitalization, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). III. Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. In this case, notice, for the issue of an increased rating for IBS, fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a February 2005 letter, prior to the date of the issuance of the appealed April 2005 rating decision. Notice for the issue of service connection for hepatitis C was furnished in February 2006 prior to the May 2006 RO decision. The Board further notes a March 2006 letter contained notice concerning how a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. Additionally, the Veteran was afforded VA examinations in June 2008 and February 2010 that were fully adequate for the purposes of adjudication. The VA examination reports include review of the record, interview of the Veteran, physical examination, and medical opinions by appropriately qualified healthcare providers. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER Service connection for hepatitis C is denied. A rating in excess of 10 percent for service connected IBS is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs