Citation Nr: 1044729	
Decision Date: 11/30/10    Archive Date: 12/03/10

DOCKET NO.  05-21 570A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota



THE ISSUE

Entitlement to service connection for hepatitis C.  



REPRESENTATION

Appellant represented by:	Minnesota Department of Veterans 
Affairs



ATTORNEY FOR THE BOARD

C. Fetty, Counsel




INTRODUCTION

The Veteran served in active military service from July 1959 to 
April 1963.

This appeal arises to the Board of Veterans Appeals (Board) from 
a February 2005 decision of the Department of Veterans Affairs 
(VA) Regional Office (RO) in St Paul, Minnesota, that denied 
service connection for hepatitis C.

In March 2010, the Board remanded the claim for additional 
development.  


FINDING OF FACT

The preponderance of the competent, credible, evidence is against 
service connection for hepatitis C.  


CONCLUSION OF LAW

Hepatitis C was not incurred in active service.  38 U.S.C.A. 
§§ 1110, 1131, 1137, 5103A, 5107 (West 2002); § 5103 (West 2002 & 
Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has remanded the case for development.  When the remand 
orders of the Board are not complied with, the Board itself errs 
in failing to ensure compliance.  See Stegall v. West, 11 Vet. 
App. 268, 271 (1998).  In this case, all remand orders have been 
complied with.  

VA must notify and assist claimants in substantiating claims for 
benefits.  38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 
38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  Upon receipt of a 
complete or substantially complete application for benefits, VA 
must 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).  VA must also inform the claimant of any information and 
evidence not of record that VA will seek to provide and that the 
claimant is expected to provide.  This notice must be provided 
prior to an initial unfavorable decision.  Mayfield v. Nicholson, 
444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  In this case, adequate notice was provided in 
March 2006; however, because an adverse decision had already been 
issued, that notice created a timing error.  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court 
of Appeals for Veterans Claims (Court) held that, upon receipt of 
an application for service-connection, 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b) require VA to provide the claimant with 
additional 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, although the notice provided created a 
timing error, such error was harmless given that the case was 
remanded, additional notice was given, and then a supplemental 
statement of the case was issued. 

VA also has a duty to assist the claimant in the development of 
the claim.  This duty includes assisting the claimant in 
obtaining 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.  

All necessary development has been accomplished and adjudication 
may proceed without unfair prejudice to the claimant.  See 
Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has obtained VA 
treatment records and has offered a VA specialist examination to 
determine the etiology of hepatitis C.  The claimant was offered 
a hearing on the matter, but declined.  Neither the claimant nor 
his representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for fair adjudication of the claim that has not been 
obtained.  Hence, no further notice or assistance to the claimant 
is required to fulfill VA's duty to assist in the development of 
the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 
281 F.3d 1384 (Fed. Cir. 2002).  

Service Connection for Hepatitis C

Service connection will be awarded for disability resulting from 
injury or disease incurred in or aggravated by active service 
(wartime or peacetime).  38 U.S.C.A. §§ 1110; 1131 (West 2002), 
38 C.F.R. § 3.303(a) (2010).  

Service connection requires competent evidence showing: (1) 
medical or, in certain circumstances, lay evidence of in-service 
incurrence or aggravation of a disease or injury; (2) medical 
evidence of current disability; and (3) medical evidence of a 
causal relationship between the present disability and the 
disease or injury incurred or aggravated during service.  
Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 
(Fed. Cir. 1996). 

In Caluza, the Court also stressed that § 3.102 states, "The 
reasonable doubt doctrine is also applicable even in the absence 
of official records, particularly if the basic incident arose 
under combat, or similarly stressful conditions [emphasis added], 
and is consistent with the probable results of such known 
hardships."  Caluza, 7 Vet. App. at 509.  

Each disabling condition shown by service medical records, or for 
which the Veteran seeks service connection, must be considered on 
the basis of the places, types, and circumstances of his service 
as shown by service records, the official history of each 
organization in which he served, his medical records, and all 
pertinent medical and lay evidence.  38 C.F.R. § 3.303(a).

"Direct" service connection may be granted for any disease not 
diagnosed initially until after discharge when all the evidence, 
including that pertinent to service, establishes that the disease 
was incurred during service.  38 C.F.R. § 3.303(d); Combee v. 
Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

Once the evidence has been assembled, the Board assesses the 
credibility and weight to be given to the evidence.  Madden v. 
Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited 
therein.  When there is an approximate balance of evidence 
regarding the merits of an issue material to the determination of 
the matter, the benefit of the doubt in resolving each such issue 
shall be given to the claimant.  38 U.S.C.A. § 5107 (West 2002); 
38 C.F.R. § 3.102 (2010).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
stated that a Veteran need only demonstrate that there is an 
approximate balance of positive and negative evidence in order to 
prevail.  To deny a claim on its merits, the evidence must 
preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 
518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

According to 38 U.S.C.A. § 1154(a), the Secretary must consider 
the places, types, and circumstances of the Veteran's service, 
his unit's history, his service medical records, and all 
pertinent lay and medical evidence in the case.  More favorable 
consideration is afforded combat Veterans under 38 U.S.C.A. 
§ 1154(b), but, because the Veteran was not in combat, he will 
not be afforded this consideration.  

The Veteran's service treatment records do not reflect any 
hepatic disorder, but do reflect that he acquired a tattoo on the 
right forearm during active service (see claims files, Vol 1).  
In July 2004, he claimed that he acquired hepatitis C during 
active service because of tattoos that he received (see claims 
files, Vol 3).  He submitted numerous VA medical reports dated in 
the early 2000s that note a history of hepatitis C (see claims 
files, Vol 5).

In March 2010, the Board remanded the case for a medical opinion 
addressing the likelihood that hepatitis C was caused by active 
military service.  

In April 2010, a VA physician reviewed the pertinent medical 
history, examined the Veteran, and then offered a negative nexus 
opinion.  The physician concluded that it is "less likely as 
not" that hepatitis C was caused by active military service (see 
claims files, Vol 6).  The physician's rationale was that 
although a tattoo is a possible risk factor for hepatitis C, the 
Veteran's service treatment reports showed no liver abnormality, 
but later, after active service, the Veteran did receive a blood 
transfusion or transfusions during a vagotomy performed prior to 
1987.  The physician named this post-service blood transfusion or 
transfusions as the likely culprit in this case, further 
explaining that blood transfusions prior to 1987 are the "most 
likely" cause of hepatitis C during that time.  

The April 2010 VA medical opinion is competent, credible, and 
persuasive, if not compelling, as it is based on correct facts 
and is supported by a rationale.  See Nieves-Rodriguez v. Peake, 
22 Vet. App. 295 (2008) (a medical opinion that contains only 
data and conclusions is accorded no weight); also see Reonal v. 
Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an 
inaccurate factual premise has no probative value).  A medical 
opinion "must support its conclusion with an analysis that the 
Board can consider and weigh against contrary opinions."  
Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The Board must also address the competency, credibility, and 
probative value the lay evidence.  38 U.S.C.A. § 7104(d)(1) (West 
2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 
F.3d 604 (Fed. Cir. 1996).  The lay evidence of record is 
competent with respect to observance of symptoms readily 
observable and it is credible, as there is no indication of lack 
of veracity.  Washington v. Nicholson, 19 Vet. App. 362, 367-68 
(2005).  However, the lay evidence may be used to establish a 
diagnosis or etiology only in certain circumstances.  Jandreau v. 
Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay diagnosis is 
competent if: (1) lay person is competent to identify the medical 
condition; (2) lay person is reporting a contemporaneous medical 
diagnosis; or (3) lay testimony of symptoms at the time supports 
a later diagnosis by a medical professional).  The Veteran's 
etiology opinion in this matter is of little value because the 
Veteran did not report any hepatitis symptom until years after 
active service and the medical professional has not supported the 
Veteran's view that it is at least as likely as not that a tattoo 
during active service caused hepatitis C.    

After considering all the evidence of record, the Board finds 
that the preponderance of it is against the claim.  Because the 
preponderance of the evidence is against the claim, the benefit 
of the doubt doctrine is not for application.  See 38 U.S.C.A. 
§ 5107 (West 2002); Gilbert, supra.  The claim for service 
connection for hepatitis C is therefore denied.


ORDER

Service connection for hepatitis C is denied.



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs