Citation Nr: 1300474 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 07-06 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to April 1970. This appeal to the Board of Veterans' Appeals (Board) arises from a May 2005 rating decision by the RO, which denied the Veteran's claim. The Veteran perfected a timely appeal to the Board, as he identified only the issue currently on appeal. See Notice of Disagreement (NOD), dated July 2005; Statement of the Case (SOC), dated February 2007; and Substantive Appeal (VA Form 9), dated February 2007. Supplemental SOCs were issued in March 2008 and August 2008. Subsequently, in November 2010, the Board remanded this matter for further development. Following the remand, a January 2012 SOC again denied the Veteran's claim. A review of the Virtual VA paperless claims processing system does not reveal any documents pertinent to the present appeal. FINDING OF FACT The evidence of record fails to demonstrate a causal relationship between the Veteran's hepatitis C and his military service. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 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 appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 5103, 5103A (West 2002 & Supp. 2012)), and implemented at 38 C.F.R. § 3.159 (2012), amended VA's duty to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. Prior to initial adjudication of the Veteran's claim, a letter dated in March 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. A notice letter sent to the Veteran in March 2006 also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2011) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained and associated with the claims file, to the extent possible. The Board notes the November 2010 remand instructed the RO to obtain any available Social Security Administration records. However, in December 2010, no such records were available. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded a VA examination in December 2010 and the results of which have been included in the claims file for review. As will be discussed in great detail below, the Board notes that the December 2010 VA examiner provided medical opinions that were essentially speculative as they found not possible to determine whether the Veteran incurred hepatitis C due to an in-service exposure. Nevertheless, the Board finds that the provided medical opinions are adequate as the complete claims file and records of the Veteran were reviewed by the examining physicians, physical examinations and laboratory tests were conducted, and the Veteran provided the history of the claimed condition. The examiner also stated why a non-speculative opinion was not possible, specifically, because of the lack of documentation of the reported blood exposure during active duty service. Therefore, the Board finds that the medical opinion of the December 2010 VA examiner is adequate. Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims. Additionally, the Board finds there has been substantial compliance with its December 2011 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Merits of the Claim 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). The Veteran contends that he currently suffers from hepatitis C as a result of his time in active duty service. In this case, the evidence must show that the Veteran's hepatitis C infection, risk factor(s), or symptoms were incurred in or aggravated by service. 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. See VBA letter 211B (98-110) November 30, 1998. However, direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of a veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. See 38 C.F.R. § 3.301(a) (2012). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability, such disability will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. See 38 C.F.R. § 3.301(d) (2012) (regarding service connection where disability is a result of abuse of drugs.). Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. See 38 C.F.R. § 3.301(c)(3) (2012). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. See 38 C.F.R. § 3.301(d) (2012); see also 38 U.S.C.A. § 105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1(m) (2012). 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), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). The Veteran maintains that his currently diagnosed hepatitis C is related to his active duty service. In a February 2012 statement regarding his exposure, the Veteran stated he was "exposed to blood constantly and there were no universal precautions at that time." He stated that he helped "Corporal Bond when his hands and fingers were partially blown off... [he] removed bodies and body parts, took out wounded prisoners and helped wounded soldiers and civilians. Exposure to blood was [normal] during combat." The Veteran also contends that the type of hepatitis C he has is mainly found in Southeast Asia. Moreover, as previously acknowledged in the November 2011 Board remand, a June 1976 VA treatment record reflects a history that he was first married in 1968 to a "Chinese-Thai" woman while on R&R leave in Thailand and that he lived with her for one week and that he was married to his second wife in May 1969 and lived with her until separation in August 1970 and that while he was in the Marines this wife was raped by another Marine at Quantico. The Veteran's service treatment records are completely negative for any treatment, complaints, or diagnoses pertaining to hepatitis C. In addition, the service records do not document that the Veteran received a blood transfusion or was injured in Vietnam. The post-service medical record establishes a current diagnosis of hepatitis in the July 2004 VA treatment record and has received treatment for hepatitis C since his diagnosis. In July 2004, it was reported that the source could be "multiple tattoos in the [1970s] and [1980s], sexual exposure while in Vietnam, work related exposure due to a bite from a client which he reports having suffered while employed at the Psych Center as a corrections officer." According to private treatment records from the University of Rochester Medical Center (Strong Health) in May 2005, the Veteran reported a history of infection in Vietnam which he associated with possible hepatitis C. He denied any IV drug use or transfusions while in Vietnam. In December 2010, the Veteran was afforded a VA examination where he stated he had tattoos created after service, was exposed to blood during service, had IV drug use after service, engaged in high risk sexual practices after service, repeated body piercings before service. He repeated his military history of blood exposure and stated that none of his sexual partners had hepatitis C that he knew of. The VA examiner noted that the Veteran was admitted for "treatment for multiple drug abuse" in 1972 and was hospitalized in 1981 for alcohol dependence and drug abuse. Upon physical examination and a review of the evidence of record, the VA examiner concluded this issue could not be resolved without resort to mere speculation. The examiner stated the Veteran had multiple risk factors for hepatitis C including multiple sexual partners and IV drug use. Although the Veteran stated he was exposed to blood while in the military, the examiner was "unable to find any records documenting or showing if there was a true blood exposure." The Board notes that the Veteran has not reported a continuity of symptoms. The history he has provided is to the effect that he incurred hepatitis C during service, but was not diagnosed until 2004. In any event, the record is also negative for competent medical evidence of a link between the Veteran's hepatitis C and service. The December 2010 VA examiner provided a medical opinion that was essentially speculative as it was found not possible to determine whether the Veteran incurred hepatitis C due to an in-service occurrence. Nevertheless, the Board finds that the provided medical opinions are adequate. When an examiner who is asked to render an etiology opinion determines that he cannot do so without resorting to speculation, the Board may not rely on such an opinion unless the record in its entirety-including the examination and the opinion itself-shows that "the examiner [did] not invoke[ ] the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts." Jones v. Shinseki, Vet. App. 23 Vet. App. 382, 388- 91 (2010). In other words, "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id. at 8. "Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must be otherwise apparent in the Board's review of the evidence." Id. at 9. "In certain cases, no medical expert can assess the likelihood that a condition was due to an in- service event or disease, because information that could only have been collected in service, or soon thereafter, is missing, or the time for obtaining other information has passed." Id. at 10. In this case, the Board finds that all available, pertinent medical information was presented to, and considered by, the VA examiner. The VA examiner conducted a thorough examination of the Veteran, and reviewed the Veteran's lay statements and the medical evidence regarding the condition. The VA examiner also stated why a non-speculative opinion was not possible, specifically, because of the lack of documentation of the reported blood exposure during active duty service. The Board finds that there is no other outstanding evidence that would shine additional light on the claim. The Board is not permitted to rely on a speculative nexus opinion to grant benefits. See 38 C.F.R. § 3.102 (distinguishing reasonable doubt from pure speculation or remote possibility); Slater v. Principi, 4 Vet. App. 43, 44 (1993) (upholding Board's rejection of a medical nexus opinion that was based on speculation). Because the evidence does not support a nexus between the Veteran's hepatitis C and any exposure he may have incurred during service, the Board is unable to grant the claim. In support of the Veteran's claim are the Veteran's lay statements which have asserted a casual relationship between the Veteran's military service and his hepatitis C. However, the Board finds that the Veteran is not competent to offer an etiology opinion. To the extent that the Veteran himself has related his current hepatitis C to his service, the Board observes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, in this case, a contention that the Veteran's hepatitis C is related to service is an etiological question as to an internal disease process unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). After considering all of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim. There is no competent medical evidence which supports the Veteran's contention that his hepatitis C is related to his military service. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs