Citation Nr: 1301661 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-07 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from April 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Northern Little Rock, Arkansas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In February 2009 a Board hearing was held at the RO before the undersigned; the transcript is of record. In September 2009 the Board denied the Veteran's claim for service connection for hepatitis C. In July 2010 the U.S. Court of Appeals for Veterans Claims (Court) issued an Order which vacated and remanded the Board decision in connection a Joint Motion for Remand (JMR). In May 2011, after being notified of his right to submit additional evidence, the Veteran asked for more time to prepare for a hearing and consult with a doctor. Despite holding the case for six months, no further communication was received from the Veteran. In January 2012 the Board remanded the claim for further development which has been completed. FINDING OF FACT The competent, credible evidence of record does not show that hepatitis C incurred in service or is related to any injury or disease in service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he had hepatitis C in service which has continued ever since. He testified that he believes he acquired hepatitis C after sexual intercourse with an affected person in 1973. The Veteran also testified that the woman told him she had had hepatitis and had been treated for it. Service treatment records (STRs) indicate that the Veteran was diagnosed with "acute viral hepatitis, HAA positive" and hospitalized from August to September 1973. An October 1973 entry included an impression of "resolved hepatitis." The January 1974 separation examination noted hepatitis in 1973, indicated by a hepatitis-associated antigen (HAA). VA treatment records indicate treatment for hepatitis C beginning in June 1999 and that the Veteran continues to have a diagnosis of hepatitis C. Recent medical evidence shows that the Veteran has been exposed to hepatitis B in the past but does not currently have active hepatitis B. 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 use, 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. The Veteran had no tattoos upon enlistment and none at exit from service. In March 2007 a VA examination was conducted. The examiner reviewed the records and reported that the Veteran's hepatitis in 1973 was of undiagnosed type as tests were not available at the time for hepatitis C. The examiner found that his symptoms at the time were more consistent with acute hepatitis A, noting that his girlfriend had a similar illness about a month before him. The examiner reported that it was impossible to say whether the Veteran had hepatitis C on active duty in 1973 because it was not identified at that time and it would be speculation to say that he had hepatitis C prior to his evaluation in 1999. The examiner opined that it was more likely than not that his acute hepatitis in 1973 was hepatitis A but that was speculative. The examiner also opined that it was less likely than not that his hepatitis C is related to the acute illness in 1973 as the Veteran denied IV drug use or a history of use, that hepatitis C is uncommonly spread by sexual activity and that the source of hepatitis C is speculative. In a March 2008 written statement the Veteran's sister reported that she recalled a telephone conversation with the Veteran in 1973 where he told her he had been hospitalized for hepatitis C. This statement is found to be of highly limited probative value for reasons which will be made clear below. At the February 2009 Board hearing the Veteran testified that he could not remember exactly when his symptoms began but that they began in the 1990s, approximately twenty years after service. In March 2012 another VA examination of the claims file was conducted in response to the JMR. The examiner reviewed the medical evidence and opined that the Veteran does not currently have active hepatitis B since the hepatitis B surface antigen is negative as of February 14, 2012. The examiner stated that it was not possible to determine whether or not there was active hepatitis B present in June 1999 based on the sole HBV core positive test in May 1999. In order to determine whether there was active hepatitis B a test for hepatitis B surface antigen or test for hepatitis B core antibody IgM would be needed. The examiner opined that it was at least as likely as not that the acute hepatitis present in service in 1973 was acute hepatitis A based on the discharge summary description of the onset and clinical course. The issue of service connection for hepatitis B has also been raised. There was some prior confusion as to whether the Veteran was exposed to hepatitis B or whether he had an immunization for hepatitis B. In July 2012, a VA physician opined that based on May 2012 lab results, the Veteran had been exposed to hepatitis B Virus, explaining that the hepatitis B core antibody is only positive with exposure to hepatitis B and not positive with immunization for hepatitis B. The same physician also concluded that it is difficult to state when the infection may have happened in the absence of previous testing, for core antibodies. In short, the Veteran has been exposed to hepatitis B, even assuming that he was exposed to hepatitis B as early as June 1999, it still does not change the fact that the Veteran does not have a current hepatitis B infection (positive for hepatitis B antigen - simply stated - he has no disability related to hepatitis B - there is nothing to service connect), and even if he did, his current hepatitis B is not the same type of hepatitis he had in service. The competent medical evidence of record concluded that it was at least as likely as not that the acute hepatitis present in service in 1973 was acute hepatitis A, not hepatitis B, providing highly probative evidence against such a finding even if he had a disability related to hepatitis B at this time. The Veteran contends that he was treated for hepatitis C in service in 1973. The Veteran is competent to report what he experiences and he is competent to report what a doctor has told him. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to diagnose a 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). Although the Veteran testified that he was told he was being treated for hepatitis C in service in 1973, this is simply not accurate. As reported by the March 2007 VA examiner, no test existed in 1973 to detect hepatitis C, therefore it is simply not possible that the Veteran was diagnosed with hepatitis C at that time. Similarly the Veteran could not have told his sister at that time that he was treated for hepatitis C. The Veteran and his sister's statements that he was treated for hepatitis C are not credible and refuted by the medical evidence of record. The Board finds that the statement of the Veteran and his sister are outweighed by the objective statement of a third party with no interest in the result of this case. The Veteran's statement that he was found to have hepatitis C in 1973 is incorrect. Such a fact only provides evidence in support of a finding that the Veteran is not an accurate historian. The Veteran contends that his hepatitis C began in service and has continued ever since. The Veteran is competent to report symptoms that he experiences, which would include fatigue, joint pain, sore muscles and itching. However, the Veteran did not report experiencing any such symptoms, or treatment for such symptoms, for many years after service. In fact, at the Board hearing he testified that first sought treatment in the 1990s, approximately 20 years after service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As such, there is no evidence of continuity of symptomatology. The weight of the medical evidence is against a finding that the Veteran was treated for hepatitis C in service. Two separate medical examiners reviewed the record and opined that it was most likely that the Veteran was treated for hepatitis A in service based on the discharge summary description of the onset and clinical course. Hepatitis A resolved without residual disability. There is no evidence of hepatitis C in service or within one year of service. There is no evidence that the Veteran's current hepatitis C is related to his in service treatment of acute viral hepatitis other than evidence that has been found to be no credible. The record contains no medical evidence of a nexus between the Veteran's current hepatitis C and any event in service. There is no evidence of any chronic hepatitis in service or of any continuity of symptomatology for hepatitis for approximately 20 years post service. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for hepatitis c is not warranted. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Duty to Assist 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). A November 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. The Veteran submitted an authorization and consent form for hospital treatment in February 2012 for portal hypertension, however these records are not pertinent to the issues on appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A VA examinations were conducted in March 2007 and March 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners reviewed the record and provided an opinion with supporting rationale as to whether the Veteran's current disabilities are related to service. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). ORDER Service connection for hepatitis C is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs