Citation Nr: 1118107 Decision Date: 05/11/11 Archive Date: 05/17/11 DOCKET NO. 04-21 484 ) 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: Gregory D. Keenum, P.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The case has since been transferred to the Nashville, Tennessee VARO. Following a February 2005 video conference hearing, the Board issued a multi-issue decision in February 2006 that included a denial of the hepatitis C claim. In March 2008, however, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand addressing only the hepatitis C claim. The claim was subsequently remanded in January 2009. Following that remand, the Board obtained a medical opinion from the Veterans Health Administration (VHA). The Veteran was notified of this opinion, and of his right to submit additional evidence and have such evidence reviewed by the agency of original jurisdiction (AOJ), in January 2011, and an April 2011 letter reflects the Veteran's preference to proceed with the case. The Board further notes that, in April and June of 2010, the Board received additional medical documentation from the Veteran, but in both instances the new evidence was accompanied by a waiver of his right to AOJ review of such evidence. 38 C.F.R. § 20.1304(c) (2010). FINDING OF FACT The evidence of record, on balance, does not establish that the Veteran's claimed hepatitis C is in any way etiologically related to service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 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 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). 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In the present case, the Veteran received notice meeting the requirements of 38 C.F.R. § 3.159(b)(1) in a May 2003 letter, issued prior to the appealed September 2003 rating decision. The Board is cognizant that both this notice letter and a further letter from November 2003 predated the Dingess decision. That notwithstanding, any inadequacies of notification as to the assignment of disability evaluations and effective dates are not prejudicial in the present case; as the service connection claim is being denied, there will be no opportunity for such assignments in any event. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the AOJ, the Board must consider whether the claimant has been prejudiced thereby). The Board further notes that the elements of the claim on appeal, as well as the types of evidence that would contain pertinent findings, were addressed by the undersigned Veterans Law Judge during the February 2005 hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In the present case, VA has obtained in-service, VA, and private treatment records of the Veteran. There is no indication whatsoever of any treatment providers from whom VA has not made fully adequate efforts to obtain corresponding records. Moreover, following the January 2009 Board remand, the Veteran was afforded a VA examination report that fully addressed the nature of the claimed disability. Because the Board found that the examiner did not adequately address the etiology of such disability, a VHA opinion addressing that question was subsequently obtained. The combination of the VA examination and the subsequent VHA opinion has ensured that all information requested upon remand has now been obtained. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA's duty to assist includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this regard, the Board notes that 38 C.F.R. § 3.309(a) includes cirrhosis of the liver, although hepatitis, including hepatitis C, is not separately listed in this section. According to Veterans Benefits Administration (VBA) Fast Letter 04-13 (June 29, 2004), the large majority of hepatitis C virus infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of hepatitis C virus with airgun injectors, it is biologically plausible. It is 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 airgun was the source of the Veteran's hepatitis C. In the present case, specifically in a July 2004 statement and in February 2005 hearing testimony, the Veteran has primarily asserted that his currently diagnosed hepatitis C resulted from air gun inoculations that had been previously used on other soldiers and had resulted in the transfer of blood. He previously noted, during the course of VA treatment in September 2001, that his hepatitis C was the result of needle sticks while working in a hospital during service. A review of the Veteran's service treatment records, including an August 1973 examination report, reveals no complaints or treatment concerning hepatitis C or any other liver dysfunction. At entry into service in October 1971, his weight was 159 pounds. He was treated for diarrhea, vomiting, and stomach cramps in December 1972, but the corresponding treatment report contains no references to any liver involvement. The August 1973 separation examination report revealed a weight of 150 pounds. The service treatment records do not include a Report of Medical History corresponding to the August 1973 examination report. Post-service treatment records include several private blood work study reports from 2000. While studies from May and June of 2000 showed that aspartate aminotransferase (AST) was within normal limits, studies beginning in September 2000 showed AST to be abnormally high. Private treatment records from May 2001 onwards indicate an assessment of hepatitis C positive. A report from Alan D. Samuels, M.D., dated in August 2001, indicates that the Veteran had a history of exposure to others with hepatitis and IV drug use. It was also noted that his wife had hepatitis C. A VA treatment record from September 2001 indicates that the Veteran had cirrhosis from hepatitis C "and found he may have this condition going on for 30 years." The examining doctor further stated that the Veteran served in the hospital "while in the service in 1977-78" and had several "needle sticks" during that time. He was advised to initiate a claim through the VA compensation and pension process. In a September 2003 report, Dr. Samuels further noted that the Veteran "now relates that he does not have a history of IV drug use." The Veteran underwent a VA liver, gall bladder, and pancreas examination in November 2009, with an examiner who reviewed the claims file. He was noted to have been first diagnosed with elevated liver enzymes in 2001. He denied a history of blood transfusion, hemodialysis, tattoos, body piercing, and intranasal and intravenous cocaine use. He explained that there was confusion regarding the 2001 notation of intravenous drug use; it was his spouse that had attempted to mention her past history of IV drug use, and he had returned to Dr. Samuels to confirm that "he had not done the intravenous drugs himself." He did report multiple sexual partners and multiple previous diagnoses of gonorrhea. Moreover, he confirmed two air gun inoculations during service and described transporting blood and plasma and being stuck by a needle on a separate occasion. The examiner found that the Veteran had cirrhosis from hepatitis C. Based on the reports, the examiner found that the only "plausible" manner in which the Veteran would have had hepatitis C from service was the air gun inoculations, which could not be corroborated in the absence of any record. Another risk factor which would put the Veteran strongly at risk for hepatitis C was from his spouse, who probably had hepatitis C. The third factor putting the Veteran at risk was sexually transmitted diseases after having unprotected intercourse with multiple sexual partners during service. The examiner further commented, however, that it was very difficult to conclude without resorting to mere speculation which of the above factors resulted in hepatitis C. In a March 2010 statement, the Veteran's sister, who identified herself as a registered nurse, noted that the Veteran had lost "so much weight" and had a dark skin color, appeared jaundiced, and had dark circles around his eyes following service. The sister noted that, while hepatitis C was not recognized or treated at that time, she felt that was what he had. She noted that she had seen many people with hepatitis C. A March 2010 VA treatment record contains a notation that the Veteran was discharged from the Army in 1973 for a viral infection. The examining nurse practitioner further referenced the Veteran's treatment for the hepatitis C virus. (Notably, in the February 2006 decision, the Board denied service connection for a chronic viral infection, and this denial was not vacated on appeal to the Court.) The nurse practitioner rendered an assessment of hepatitis C and the Veteran's being diagnosed with viral hepatitis while on active duty, without further explanation or citation to a review of the claims file or other relevant medical documentation. Following the Board's request, a VHA opinion was offered by a medical doctor in January 2011. This doctor reviewed the entire claims file, taking into account the Veteran's reported history of inoculation by air gun. The doctor further noted that a review of the records did not confirm a diagnosis or treatment for sexual transmitted diseases and referenced the spouse's history of hepatitis C, describing this post-service risk factor as "uncontested." Given the two undisputed risk factors of air gun inoculation and a hepatitis C-positive spouse, the doctor found it more likely than not that the spouse was a more significant risk in developing hepatitis. An air gun inoculation carried a "small theoretical risk," but the examiner found that it was not clear if this was a true risk factor "in the absence of epidemic from inoculation of his cohort." In summary, the records supported the finding that it was more likely than not that hepatitis C resulted from the spouse, and it was "less likely" that the use of an air gun in service (especially without corroborating documentation of an epidemic of hepatitis C from his cohort of co-inoculated service men and women) was the cause of documented hepatitis C. In reviewing the above evidence, the Board has considered the favorable evidence of record. The September 2001 VA record indicates that the Veteran "may" have had hepatitis for 30 years, and the November 2009 VA examiner noted that an air gun inoculation during service was a "plausible" manner for infection. These opinions are indefinite and essentially speculative in nature and are to be accorded no more than very minimal probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion that a particular event "may" have led to the Veteran's disability is too speculative to establish a causal relationship). The March 2010 statement from the Veteran's sister, identified as a registered nurse, reflects her opinion that he had hepatitis C at discharge from service. While she is competent to give an opinion, as a medical professional, the probative value of this opinion is limited by the absence of citation to AST findings or other laboratory testing of the liver and by the service treatment records showing only a nine pound loss during service despite her emphasis on the Veteran's weight loss. Finally, the March 2010 VA treatment record contains an assessment of the Veteran's being diagnosed with viral hepatitis while on active duty, as well as current hepatitis C. However, the nurse practitioner who offered this assessment appears to have based this opinion only on the lay report from the Veteran and did not directly state that hepatitis C was a result of viral hepatitis on active duty. See Miller v. West, 11 Vet. App. 345, 348 (1998). In summary, all of these opinions are of relatively minimal probative value for the reasons described. The January 2011 VHA opinion, on the other hand, contains the more definite opinion (based upon a claims file review) that his hepatitis C was substantially more likely attributable to the Veteran's infected spouse than to any in-service air gun inoculation, particularly given the absence of evidence of an in-service epidemic. The Board thus finds that the January 2011 opinion, which does not support the Veteran's claim, is the opinion with the greatest probative value. With disability compensation claims, VA adjudicators are directed to assess lay evidence as well as medical evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In weighing credibility, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In the case at hand, the Veteran's lay contentions are largely predicated on the causal role of in-service events, notably air gun inoculations, in developing hepatitis C, rather than any continuity of symptoms since service. He did vaguely describe a history of "general fatigue, sick, been checked" during his February 2005 hearing. Even if the Board liberally interprets the Veteran's testimony as suggesting a continuity of symptomatology since service, he lacks the medical expertise, training, or credentials to determine that such symptoms are attributable to a liver disorder such as hepatitis C. The Board notes that, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354, chronic active hepatitis affects the liver, an internal organ, and is readily distinguishable from the more visibly or audibly identifiable diseases addressed in Barr, Falzone, and Charles. Finally, the Board is aware of the Veteran's reports of considerable weight loss during service (e.g., he described losing 41 pounds in 30 days during his February 2005 hearing) but notes that the service treatment records reflect a far less significant weight loss over the course of service (nine pounds). Therefore, even accepting the Veteran's reported risk factor and symptom history as truthful and credible, his lay opinion as to the etiology of a disease involving an internal organ cannot be accepted as competent evidence, let alone evidence of probative value comparable to the aforementioned January 2011 VHA opinion. The Board also notes that the Veteran has submitted multiple treatise articles concerning hepatitis and cirrhosis of the liver. Given that these articles do not directly speak to the key etiology questions in this case, namely whether it is more likely that the Veteran incurred hepatitis as a result of a service-related incident as opposed to other possible causes, they are of no probative value in the present case and do not warrant further development (e.g., comment by a VA examiner). Overall, the preponderance of the evidence is against the Veteran's claim for service connection for hepatitis C, and this claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for hepatitis C is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs