Citation Nr: 1302267 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-34 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for cirrhosis. 3. Entitlement to service connection for encephalopathy. 4. Entitlement to service connection for vasculitis. 5. Entitlement to service connection for a gall bladder disorder. 6. Entitlement to service connection for an eye disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from March 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the benefits sought. FINDINGS OF FACT 1. Hepatitis C was not shown to be present in service or until many years after service, and has not been shown by competent medical or competent and credible lay evidence to be otherwise etiologically related to such active duty. 2. Cirrhosis was not shown to be present in service or within one year of discharge, and has not been shown by competent medical or competent and credible lay evidence to be otherwise etiologically related to such active duty or a service-connected disability. 3. Encephalopathy was not shown to be present in service or within one year of discharge, and has not been shown by competent medical or competent and credible lay evidence to be otherwise etiologically related to such active duty or a service-connected disability. 4. Vasculitis was not shown to be present in service, and has not been shown by competent medical or competent and credible lay evidence to be otherwise etiologically related to such active duty or a service-connected disability. 5. Gall bladder disease was not shown to be present in service, and has not been shown by competent medical or competent and credible lay evidence to be otherwise etiologically related to such active duty or a service-connected disability. 6. An eye disorder was not shown to be present in service, and has not been shown by competent medical or competent and credible lay evidence to be otherwise etiologically related to such active duty or a service-connected disability. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303 (2012). 2. Cirrhosis was not incurred in or aggravated by active military service, may not be presumed to have been so incurred or aggravated, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.307, 3.309(a), 3.310 (2012). 3. Encephalopathy was not incurred in or aggravated by active military service, may not be presumed to have been so incurred or aggravated, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.307, 3.309(a) (2012). 4. Vasculitis was not incurred in or aggravated by active military service and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.310 (2012). 5. Gall bladder disease was not incurred in or aggravated by active military service and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.310 (2012). 6. An eye disorder was not incurred in or aggravated by active military service and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. 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, with respect to the increased rating claims on appeal. 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 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 claimant. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for increased ratings. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court has also observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). In a June 2008 letter, issued prior to the rating decisions on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, including on a secondary basis, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claims. He was also advised of how disability ratings and effective dates are assigned. The letter also requested that he inform VA of the risk factors associated with hepatitis C infection that pertained to him. Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any specific deficiency to be corrected. Furthermore, the Board concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, VA medical records and private medical records are in the file. At no time during the current appeal has the Veteran referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the issues on appeal. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). The RO scheduled the Veteran for various VA examinations in February and March 2010. However, he failed to report to them. In April 2010, the RO sent the Veteran's file to a VA clinician for review of the Veteran's records as well as an opinion pertaining to the etiology of the Veteran's hepatitis C. In his June 2010 substantive appeal, the Veteran stated that he missed the examination because his health problems prevented him from driving more than 150 miles to VA's medical center in Detroit. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In considering the factors at issue here, the Board finds that a VA examination is not warranted. Moreover, the opinion provided in April 2010 is sufficient upon which to make a decision on the claims because it is thorough and was based on a review of the Veteran's contentions and the medical evidence in the file. The disabilities for which the Veteran seeks service connection are noted in his private medical reports and a clinical evaluation would not serve to establish the presence of a particular disease entity. The key factors necessary to decide the claim were the presence or absence of certain risk factors as well as the etiology of the Veteran's hepatitis C. These factors were addressed by the clinician in April 2010 and were based on a full review of the record as well as the Veteran's contentions. Therefore, the Board finds that VA's duty to assist has been adequately met and a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). II. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as cirrhosis of the liver or encephalitis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection may be established for disability which is proximately due to, the result of, or chronically aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hepatitis C Medically recognized risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine abuse, high-risk sexual activity, accidental exposure while a health care worker, and various percutaneous exposures such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes, or razor blades. See Veterans Benefits Administration (VBA), Director Bulletin, 211B (98-110) (Nov. 30, 1998). A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified several "key points" that include 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 that, while population studies suggest hepatitis C can be sexually transmitted, the chance for such transmission is well below comparable rates for HIV/AIDS or hepatitis B infection. Moreover, the source of infection is unknown in about 10 percent of acute hepatitis C cases and in 30 percent of chronic hepatitis C cases. These infections may come from blood-contaminated cuts or wounds, contaminated medical equipment, or multi-dose vials of medications. It was concluded 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 intravenous drug use. In the present appeal, the Veteran asserts that his hepatitis C resulted from exposure to blood from cleaning up hazardous messes, including blood, during his military service or from vaccinations administered with air gun injectors. The Veteran's DD Form 214 and personnel records indicate that he served as an equipment storage specialist. Although he reported that he worked in a base hospital as a supply clerk, his service treatment records do not denote that he was treated for any open wounds. There are no other risk factors denoted in his service records (such as tattoos, piercings, surgery or blood transfusions). The service treatment records are also entirely negative for symptoms suggestive of hepatitis C. However, as hepatitis C is a viral disease that may be asymptomatic at the time of infection, service connection may still be warranted if all the evidence establishes that the disease was incurred in or related to service. Post-service records show that the Veteran has had a diagnosis of hepatitis C since at least March 2003. At the time, he was seen for complaints of low back pain and leg pain. His past medical history was noted to be remarkable for alcohol abuse and intravenous drug use. He had hepatitis C and cirrhosis. In a December 2005 record, he reported a history of sharing needles for drug abuse, which is a risk factor for hepatitis C. Private treatment records dated from the initial diagnosis through January 2008 do not discuss a possible connection between the Veteran's hepatitis C and residuals with his military service. In April 2010, a VA clinician reviewed the Veteran's file and assertions, and concluded that it was not likely that the Veteran's hepatitis C was related to military his service. He noted that there was documentation in the record that the Veteran shared needles for drug abuse, which was a known risk factor for hepatitis C infection. Additionally, it was not likely that the Veteran contracted the infection from cleaning up blood in the absence of any open wound to himself. Within the context of the service records and other evidence presented, the Board finds that the Veteran's hepatitis C has not been dissociated from his post-service risk factor of sharing needles for intravenous drug use. Moreover, it has not otherwise been attributed to in-service activity or other credible or verified in-service exposure. Accordingly, service connection is not warranted for the disease. The Board is aware of the fact that it may, and often does, take many years from the time of initial infection until the time that symptoms may be sufficient to cause an individual to seek diagnostic testing. However, the fact remains that the clinical records first denote a diagnosis of hepatitis C infection more than30 years after he was separated from service, despite assertions that it had been present for more than 30 years. This lengthy period between service and the initial confirmation of the disability provides highly probative evidence against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim); Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact. In reaching the above conclusion, the Board has not overlooked the Veteran's contentions. As to his assertions that hepatitis C is related to service, the Board acknowledges that he is competent to give evidence about what he sees and feels; for example, he is competent to report exposure to blood/bodily fluids or that he received vaccinations. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board is also aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, at 310. The Veteran is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Additionally, hepatitis C is a complex medical condition that requires medical expertise to diagnose, treat, and attribute to risk factors denoted in the medical records. It is not capable of lay observation alone. Hence, the Veteran's statements are simply not sufficient upon which to grant the claim, and his opinion is far outweighed by the absence of objective findings of hepatitis in the service treatment records, the post-service reports of intravenous drug use, and the 2010 VA opinion by a medical professional. See Jandreau supra & Buchanan supra. Finally, the Veteran has provided contradictory and inconsistent statements regarding a history of drug use. As a result his statements denying any history of IV drug use are not deemed credible. The Board observes that in his June 2010 substantive appeal, the Veteran alleged that he never used drugs in his life. However, his treatment records at the time of diagnosis clearly indicate that he provided a history of sharing needles for drug abuse. Since this statement was made in the context of seeking medical assistance, the Board has accorded in greater probative weight than his contrary statements made in conjunction with his VA claim for monetary benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Accordingly, the preponderance of the evidence is against the claim for service connection for hepatitis C, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). Cirrhosis, Encephalopathy, Vasculitis, Gall Bladder Disorder, and Eye Disorder The Veteran's service treatment records do not denote any complaints or diagnoses pertaining to the liver, brain, vascular system, gall bladder, or eyes. He was treated for viral gastritis in August 1967. No chronic residuals were indicated. Upon separation examination in January 1970, all systems were reported to be clinically within normal limits. Private medical records dated from March 2003 through January 2008, more than 30 years after the Veteran's discharge from active military service, show that the Veteran has been diagnosed with cirrhosis of the liver, encephalopathy, thrombocytopenia, and cholecystitis. No specific disability of the eye has been diagnosed. However, the medical records do not relate any of these claimed conditions to the Veteran's military service or a service-connected disability (and as discussed above fully, he has not established service connection for hepatitis C). Moreover, the Board observes that there are no medical records documenting complaints related to these disabilities to satisfy the continuity of symptomatology requirement of § 3.303(b) until decades after separation from service. See Maxson, supra. The Veteran has been provided with ample opportunity to present competent medical or competent and credible lay evidence to support these claims. However, he has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) (it is a claimant's responsibility to support a claim for VA benefits). The Veteran's assertions alone are not sufficient because the disabilities at issue are not capable of lay observation alone for the purposes of diagnosis and etiology. Moreover, in the absence of such evidence, VA is not obligated to obtain an opinion specifically for these claims. See 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In conclusion, the record does not contain any persuasive evidence that the Veteran's currently manifest disabilities of the liver, brain, vascular system, gall bladder, or eyes are etiologically related to active service or another service-connected disability. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Therefore, service connection is not warranted and the claims must be denied. ORDER Service connection for hepatitis C is denied. Service connection for cirrhosis, including secondary to service-connected disability, is denied. Service connection for encephalopathy, including secondary to service-connected disability, is denied. Service connection for vasculitis, including secondary to service-connected disability, is denied. Service connection for a gall bladder disorder, including secondary to service-connected disability, is denied. Service connection for an eye disorder, including secondary to service-connected disability, is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs