Citation Nr: 1237850 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 09-21 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to October 1973. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2007 rating decision from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, for the asthma claim, and a July 2008 rating decision in Nashville, Tennessee, for the hepatitis C claim. In December 2010, the Board remanded the matters to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The case has now been returned to the Board. The issue of entitlement to service connection for asthma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDING OF FACT The Veteran's current hepatitis C is not shown to be causally or etiologically related to his active military service. CONCLUSION OF LAW Service connection for hepatitis C is not established. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.304, 3.326(a) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in October 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letter was provided prior to the initial RO adjudication of his claim. Thus, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. He has been afforded VA examinations and medical opinions. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. The Board is also satisfied as to substantial compliance with its December 2010 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Remand directed the RO/AMC to obtain the Veteran's recent VA and private treatment records. The recent VA records were obtained and associated with the claims file. In an April 2012 phone conversation with a VA representative, the Veteran stated that he did not have any medical treatment outside of VA; thus, no additional private treatment records were associated with the claims file. The Remand also included a request to schedule the Veteran for a VA examination and medical opinion, which he had in December 2011, April 2012, and June 2012. Finally, the Remand directed the RO/AMC to readjudicate the Veteran's claim. This was accomplished in the June 2012 Supplemental Statement of the Case (SSOC). Service Connection The Veteran filed a claim of service connection for hepatitis C in October 2007. The Veteran contends that he acquired hepatitis C during his military service, from air gun vaccinations he received when he entered the military service. Specifically, the Veteran stated that blood was visible on the air guns, but they continued to use the same guns to distribute vaccines to others. To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (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 disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may also be awarded for a "chronic" disorder when: (1) a chronic disorder manifests itself and is identified as such during the active military service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same disorder); or (2) a disorder manifests itself during the active military service (or during the presumptive period), but is not identified until later, there is a showing of continuity of symptomatology after the military discharge, and medical evidence relates the symptomatology to the Veteran's present disorder. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). For the showing of chronic disease during the active military service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a chronic disease is shown during the active military service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a disorder is noted during the active military service, but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Regarding hepatitis C claims in particular, risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. While mindful that intranasal cocaine and intravenous drug use are risk factors for hepatitis C, the Board observes that service connection cannot be established for a disorder that results from willful misconduct or the primary abuse of alcohol or drugs. 38 U.S.C.A. §§ 105(a), 1110 (West 2002); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Willful misconduct is defined as an act involving conscious wrongdoing or a known prohibited action, and alcohol and drug abuse are, by statute, deemed to be willful misconduct. Libertine v. Brown, 9 Vet. App. 521 (1996); 38 C.F.R. §§ 3.1(n), 3.301 (2011). For that reason, a grant of service connection is precluded for any abuse of alcohol or drugs during the military service, and for any disorder, including hepatitis C, which is due to the abuse of alcohol or drugs. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, regarding a current diagnosis, the evidence indicates that the Veteran has been diagnosed with hepatitis C. At the VA examination in December 2011, the Veteran was diagnosed with hepatitis C. Thus, the Veteran has satisfied the first requirement of service connection. Regarding an in-service incurrence of this current disorder, the Veteran's STRs are silent for documentation of the disorder. The records reveal no complaints or treatment related to the Veteran's hepatitis C. At his separation examination, hepatitis C was not documented. However, as previously stated, the Veteran asserts that he acquired hepatitis C during his military service, from air gun vaccinations he received when he entered service. Specifically, the Veteran stated that blood was visible on the air guns, but they continued to use the same guns to distribute vaccines to others. His STRs do document that he received in-service vaccinations, but the records do not document blood on the air guns or symptoms related to hepatitis C. Post-service, the Veteran was first treated by the VA Medical Center (VAMC) beginning in June 2009 for his hepatitis C. These VA outpatient treatment records document drug and alcohol use, to include cocaine use, which are possible risk factors for hepatitis C. The Veteran left the active military service in 1973 and did not complain of symptoms until almost forty years later. This intervening lapse of so many years between his separation from military service and the first documented manifestation of this claimed disorder is probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disorder). Regarding a nexus opinion, the Veteran submitted a November 2008 letter from his treating VA nurse, which stated that the Veteran's hepatitis C was at least as likely as not related to his military service. However, the nurse's findings, which fail to definitively relate the Veteran's hepatitis C to an event or injury in service, are inherently speculative in nature and thus of limited probative value. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Specifically, the nurse did not address the Veteran's hepatitis C risk factors, to include air gun vaccinations, and drug and alcohol use that were reported in the Veteran's VA outpatient treatment records. The nurse also did not review the claims file, to include the Veteran's STRs, prior to providing the medical opinion. The nurse also did not provide any rationale for the medical opinion. For purposes of a service connection claim, medical opinions must be supported by a full and complete rationale. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that the VA nurse's letter, standing alone, cannot serve as a basis of granting service connection. As a result, the Veteran was afforded a VA examination in December 2011. The VA examiner diagnosed the Veteran with hepatitis C. The Veteran denied any risk factors associated with hepatitis C. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that there was nothing in the Veteran's history to suggest any exposure to the hepatitis C virus. Specifically, the examiner noted that the Veteran denied any IV drug use. An addendum VA medical opinion was obtained in April 2012. Following a review of the claims file, the VA examiner determined that it was difficult to be more explicit than to say that the Veteran denies any risk factors. The examiner stated that, "To think that vaccinations could have caused hepatitis C is fanciful and not medically sound." Another VA addendum medical opinion was obtained in June 2012. Following a review of the claims file, the VA examiner determined that it is less likely than not (less than 50 percent probability) that the Veteran's hepatitis C was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there is no evidence for any sort of exposure or risk factor for hepatitis C while the Veteran was in the military service. The Board finds the negative evidence outweighs the positive on the issue of direct service connection. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). As the VA examiners provided an explanation as to why the Veteran's hepatitis C is not related to his active military service and reviewed the claims file multiple times, the Board finds the probative value of the VA examination reports are greater than the cursory conclusions of the VA nurse who did not provide any rationale for the November 2008 medical opinion and did not review the claims file. Here, the VA examiners accurately and thoroughly characterized the evidence of record prior to providing their medical opinions. The December 2011 VA examiner also conducted a comprehensive examination of the Veteran. The VA examiners' reports of the Veteran's medical history and the examiners' clinical findings are consistent with the entire body of medical evidence of record. There is no basis on which to find that the VA examination reports are incomplete or insufficient in any way. The Board notes that the Veteran reports continuous symptomatology since his active military service. However, the Veteran's contentions are not supported by the medical evidence of record. The earliest pertinent post-service medical evidence associated with the claims file is dated from 2009, almost forty years after the Veteran's military separation in 1973. When the Veteran was first treated post-service in 2009, he did not indicate that his hepatitis had been present since his active military service. Thus, the Board finds that the medical evidence also does not establish a "chronic disorder." 38 C.F.R. § 3.303. In reaching this decision, the Board has considered the Veteran's arguments in support of his claim. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. The Veteran is competent to report that he received immunizations and was exposed to blood during his active military service, which resulted in his current hepatitis C. However, the Board must still weigh his lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (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")). In making this credibility determination, the Board does not find the Veteran's statements concerning the etiology of his hepatitis C to be credible, since his STRs make no reference to blood on the air guns or symptoms of hepatitis C. Further, the first post-service treatment for hepatitis C is dated in 2009, more than forty years after his separation from the active duty. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Veteran's statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show hepatitis during his active military service, and until over three decades after his separation from the active duty in 1973. The post-service VA outpatient treatment records document drug and alcohol use, to include cocaine use, which are possible risk factors for hepatitis C. Thus, the evidence of record suggests that the Veteran's hepatitis C is more likely due to a post-service factor than his active military service. For the reasons set forth above, the Board finds that the Veteran's lay statements that his symptoms have been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for hepatitis C. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran's claim of entitlement to service connection for hepatitis C is not warranted. ORDER The claim entitlement to service connection for hepatitis C is denied. REMAND A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claim of service connection for asthma. Initially, the evidence of record suggests that the Veteran's asthma may have pre-existed his active military service. In this regard, the Veteran has not been provided with a proper duty-to-assist notice letter. Specifically, the Veteran has not been informed of the requirements for establishing service connection based on aggravation of a pre-existing disorder. The Veteran must be provided with this requisite notice. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011). Additionally, in December 2010, the Board remanded the Veteran's asthma claim so that a VA examination and medical opinion could be obtained. In accordance with the Board's remand directives, the AMC scheduled the Veteran for a VA examination in December 2011 to address the nature and etiology of his asthma. VA medical opinions were then provided in February 2012 and June 2012. However, for the foregoing reasons, the Board finds these VA medical opinions to be inadequate. At the December 2011 VA examination, the Veteran was diagnosed with asthma. Following a review of the claims file and following the physical examination of the Veteran, the December 2011 VA examiner provided a medical opinion in February 2012. The examiner determined that the Veteran's asthma "clearly antedated military service and was not worsened by it." No rationale was provided for the opinion. In June 2012, another medical opinion was obtained. The VA examiner determined that the Veteran's asthma is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's "history is that asthma began well before service, and was not worsened by same." No further rationale was provided. The February 2012 and June 2012 VA examiners did not address the correct legal standard pertaining to whether the asthma pre-existed the Veteran's active military service, and did not address whether this pre-existing asthma was aggravated beyond its natural progress by the Veteran's active military service. 38 U.S.C.A. §§ 1111, 1153 (West 2002); 38 C.F.R. § 3.306 (2011). Thus, the medical opinion is inadequate. Accordingly, this case must again be remanded for a VA addendum medical nexus opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (noting that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Accordingly, the case is REMANDED for the following actions: 1. The AMC should send the Veteran another VCAA letter pertaining to his asthma claim, to include information regarding establishing aggravation of a pre-existing disorder under 38 U.S.C.A. §§ 1111, 1153 (West 2002) and 38 C.F.R. § 3.306 (2011). 2. The AMC shall ask the original VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for an in-person VA examination for his asthma. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted. The VA examiner should indicate whether there is clear and unmistakable evidence that the Veteran's asthma preexisted service. If clear and unmistakable evidence exists that the Veteran had asthma prior to entering service, the examiner should opine whether there is clear and unmistakable error that the disorder was not aggravated by service. Lastly, if asthma did not preexist service, the examiner should state whether it is at least as likely as not that any current asthma had its onset during active service or is related to any in-service event, disease, or injury. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim, considering all applicable laws and regulations. If the claim is denied, the AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs