Citation Nr: 1300934 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-28 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for hepatitis C, to include jaundice as a manifestation thereof. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1972 to June 1974. He is not a veteran of combat. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the Veteran's claim of entitlement to service connection for hepatitis C. The Veteran submitted a Notice of Disagreement with this determination in January 2010, and timely perfected his appeal in July 2010. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of the claim. In his July 2010 substantive appeal [VA Form 9] he declined the option of testifying at a personal hearing. Electronic Virtual VA File The Board notes that the Veteran's electronic Virtual VA file has also been reviewed in conjunction with this determination. No additional records were added to the electronic file since the issuance of the October 2012 Supplemental Statement of the Case. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The preponderance of the evidence is against a finding that the Veteran currently suffers from hepatitis C, to include jaundice as a manifestation thereof, as a result of a disease or injury incurred in active duty service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by the Veteran's active duty service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS 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 his 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 claim. The Veteran 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 Veteran). 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 Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have 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 Veteran 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. VA's Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 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 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 the initial adjudication of the Veteran's claim, a letter dated in July 2009 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. The notice letter 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 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his appellate claim, 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. The Board notes that the Veteran identified additional private treatment records that he wished VA to obtain on his behalf. Despite VA's multiple attempts to obtain the appropriate authorization forms to obtain such records for the Veteran, he did not respond. The Board notes that the duty to assist is not always a one-way street. If the Veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Board finds that VA's exhaustive efforts, in attempting to obtain additional information from the Veteran to assist him in the development of his claim, have satisfied the duty to assist. Review of the Veteran's electronic Virtual VA file was also negative for any new evidence. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The record indicates that the Veteran participated in a VA examination in October 2009, the results of which have been included in the claims file for review. The October 2009 examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). 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 service connection claim. 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 claim such that the essential fairness of the adjudication is not affected. II. The Merits of the Claim The Veteran contends that he currently suffers from hepatitis C as a result of his time in active duty service. Specifically, the Veteran contends that he could have contracted the hepatitis C virus through his in-service inoculations via airgun. Relevant Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). 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. See 38 C.F.R. § 3.303(b) (2012). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Hepatitis C Virus In a VA "Fast Letter" issued in June 2004 (Fast Letter 04-13, June 29, 2004), VA noted that a rating decision had been issued that was apparently based on a statement incorrectly ascribed to a VA physician to the effect that persons who were inoculated with a jet injector or "airgun" were at risk of having hepatitis C. The Fast Letter then identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. The Fast Letter indicates in its Conclusion section that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. It also noted that transmission of hepatitis C virus via airgun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting. It noted that it was "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 a veteran's hepatitis C. Analysis A review of the evidence shows that Shedden element (1), a current disability, has been met. The medical evidence includes VA treatment records as well as the October 2009 VA liver examination report, which diagnose the Veteran with hepatitis C. See VA Treatment Record, May 1 2009; VA Liver Examination Report, October 8, 2009. See also Shedden, supra. With regard to Shedden element (2), in-service disease or injury, the Board will separately address disease and injury. A review of the Veteran's service treatment records fails to reveal the presence of any diagnosis of any form of hepatitis. There is no medical evidence of hepatitis C, or of any type of hepatitis, in service or for decades thereafter. As for in-service injury, the injury alleged is exposure to hepatitis C virus through inoculations via airgun. The Veteran has presented no specific evidence in support of this theory, i.e., there is nothing in the record, which would indicate that any inoculations received by the Veteran in service were in fact tainted by the hepatitis virus. Although the Veteran was vaccinated in service, as were millions of other service members, there is no indication in the service treatment records or otherwise that the Veteran experienced any infection there from. Nor is there any evidence of record that would indicate that the equipment used was not properly sanitized or that persons who received previous injections, if any, were infected. The Veteran's contention amounts to speculation on his part. Moreover, the VA Fast Letter referred to above indicates that there is no scientific evidence that airgun injections cause hepatitis. To the extent that the Veteran invites the Board to draw the conclusion, based on no medical evidence, that such injections somehow have caused him to be infected with the hepatitis C virus, the Board declines to do so. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. The Board is aware of the Veteran's contention that he suffered from jaundice during his time in active duty service. Unfortunately, however, there is no evidence that the Veteran reported this condition during service. His service treatment records are completely negative for any complaints of, or treatment for, yellowing of the skin. In fact, the Veteran's service separation examination is completely negative for any complaints and the Veteran specifically indicated that there had been no significant change in his health since he entered service. See Standard Form 88, Service Separation Examination Report, May 20, 1974. As such, the evidence fails to satisfy Shedden element (2). See Shedden, supra. The Board observes in passing that there is an indication of drug use by the Veteran in service. See Service Treatment Record, April 1, 1973. Even if the Veteran's hepatitis C stems from such activity (and there is no evidence that it does), the law and regulations provide that no compensation shall be paid if a disability is the result of a veteran's own willful misconduct, including the abuse of drugs. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2012). In April 2009, VA laboratory testing revealed elevated liver enzymes. See VA Treatment Record, April 12, 2009. Shortly thereafter, in May 2009, the Veteran was diagnosed with hepatitis C. See VA Treatment Record, May 1, 2009. With respect to Shedden element (3), nexus, the only evidence in support of the Veteran's claim consists of his lay statements alleging that his currently diagnosed hepatitis C is the result of his time in active duty service. Initially, the Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss the changing color of his skin. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Furthermore, the Board finds that the Veteran's lay statements in the present case are outweighed by the negative VA medical opinion cited below. The Veteran was afforded a VA liver examination in October 2009. At that time, the Veteran reported that while in service, he received multiple immunizations using the immunization gun for mass vaccination programs in the military. He also reported an episode of approximately one week when he suffered from jaundice while in the field in Germany. The Veteran did not remember any other symptoms associated with his episode of jaundice. The VA examiner's review of the Veteran's service treatment records was negative for any complaints of, or treatment for, jaundice during his time in active duty service. The Veteran's current history began when his liver function tests were elevated. See VA Liver Examination Report, October 8, 2009. The VA examiner noted that the Veteran had been a regular consumer of alcohol his entire adult life, drinking approximately four to five beers per day. In 2008, the Veteran was noted to have elevated liver function tests, which were assumed to be related to alcohol consumption. Those tests were again repeated in May 2009, and found to be abnormal once again. These results prompted a hepatitis C antibody test, which was reactive. Confirmatory hepatitis C polymerase chain reaction (PCR) was positive. The Veteran reported that he was asymptomatic from his hepatitis. He did not describe any further jaundice episodes since the one he described during service. He reported normal energy and activity level, though he indicated approximately a five-pound weight loss over the last three months. He tolerated a normal diet without nausea, vomiting, diarrhea or constipation. He denied any episodes of hematemesis or bright red blood per rectum. He had no known diagnoses of esophageal varicies and denied any rashes or skin changes. He denied any abdominal distention or lower extremity edema. He had not received any medications for his hepatitis C. He continued to drink alcohol. Id. The Veteran reported no history of intravenous drug use or intranasal cocaine use. Review of a service treatment record in April 1973 noted that he was seen in the clinic/infirmary where the documentation reflected a strong suspicion of drug use of unknown type. There was no formal drug testing at that time and the Veteran left the clinic against medical advice. He denied any history of blood transfusion or kidney transplantation. He was in jail on two separate occasions for a total of approximately four years. He estimated his total number of lifetime sexual partners to be 20 and was unsure if he had ever had intercourse with a know intravenous drug user. He denied any traumatic injuries, cuts, or stab wounds. He also denied having any body piercings or tattoos. Id. The only co-morbidity the Veteran reported was hypertension, which was diagnosed on September 12, 2008. He denied any history of coronary artery disease and denied any chest pain, shortness of breath, or previous cardiac evaluation. He denied any history of stroke, transient ischemic attacks, kidney dysfunction, or peripheral vascular disease. He smoked approximately 1/2 to one pack of non-filtered cigarettes per day, for the past 40 years. Id. Laboratory results from July 6, 2009, were as follows: total bilirubin was 0.6; alkaline phosphatase was 85; alanine aminotransferase was 134; and gamma-glutamyl-transferase was 657. From May 1, 2009, the hepatitis C antibody was reactive with confirmatory hepatitis C PCR positive. There was no previous record of hepatitis C testing in the VA system or otherwise. The VA examiner diagnosed the Veteran with chronic hepatitis C and hypertension. The VA examiner stated that the Veteran's recognized risk factors, as taken from his history, (which the examiner assumed to be truthful) included incarceration for four years, 20 previous sexual partners, and exposure to the immunization gun during the military. The VA examiner stated that although it was biologically plausible that an immunization gun could cause hepatitis C, this was theoretical and had not been shown to be a risk factor for the Veteran's hepatitis C. It was the VA examiner's opinion that it was not at least as likely as not that the Veteran's current hepatitis C was related to his exposure to the immunization gun during active duty service. Id. The Board is free to favor one opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, the Board finds the October 2009 VA examination report to be the most probative evidence of record. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The October 2009 VA examiner thoroughly examined the Veteran, took his history and reviewed it in comparison with the relevant service treatment records, and provided a well-reasoned medical opinion. The Board finds that this medical opinion is more probative than the unsubstantiated claims of the Veteran. As such, element (3) under Shedden has not been satisfied. See Shedden, supra. Although the Veteran has established that he currently suffers from hepatitis C, the evidence of record does not support a finding that this condition was present in service or that the in-service viral inoculations caused the currently diagnosed hepatitis C. The Veteran's claim fails on the basis of element (3) of Shedden, lack of medical nexus. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. ORDER Entitlement to service connection for hepatitis C, to include jaundice as a manifestation thereof, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs