Citation Nr: 1302377 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 03-34 765 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a prostate disorder. 3. Entitlement to higher compensation due to the presence of a dependent child. (The issue of entitlement to a rating in excess of 20 percent for a right shoulder disorder and the issue of entitlement to a compensable rating for right shoulder scars will be the subject of a separate decision.) REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to May 1971. He had service in the Republic of Vietnam from March 1968 to January 1969. His awards and decorations included the Combat Infantryman Badge and Purple Heart Medal. The issues on the title page were before the Board of Veterans' Appeals (Board) in February 2012, at which time, they were remanded for further development. Following the requested development, the VA Appeals Management Center (AMC) in Washington, D.C. confirmed and continued the denial of entitlement to service connection for hepatitis C and for a prostate disorder. The AMC confirmed and continued the 20 percent rating for a right shoulder disorder and the noncompensable rating for the scars on the Veteran's right shoulder. Finally, the RO denied the Veteran's claim of entitlement to additional compensation due to the presence of a dependent child. Thereafter, the case was returned to the Board for further appellate action. In November 2010, the Veteran had a hearing at the RO before the undersigned. A transcript of this hearing has been included in the claims folder. FINDINGS OF FACT 1. Hepatitis C was first manifested many years after service, and the preponderance of the evidence is against a finding that it is in any way related thereto. 2. The preponderance of the evidence is against a finding that the Veteran's hepatitis C is the result of his exposure to Agent Orange. 3. A prostate disorder, diagnosed primarily as benign prostatic hypertrophy and prostatitis, was first manifested many years after service, and the preponderance of the evidence is against a finding that it is in any way related thereto. 4. The preponderance of the evidence is against a finding that the Veteran's prostate disorder is the result of his exposure to Agent Orange. 5. The Veteran did not respond within one year to the Board's request for evidence in relation to his claim of entitlement to higher compensation due to the presence of a dependent child. CONCLUSIONS OF LAW 1. Hepatitis C is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to be the result of exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(e) (2012). 2. A prostate disorder is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to be the result of exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(e) (2012). 3. The criteria have not been met for higher compensation due to the presence of a dependent child. 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.518, 3.159, 3.503 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to service connection for hepatitis C and a prostate disorder and a claim of entitlement to additional compensation due to the presence of a dependent child. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In September 2004, October 2005, and July 2007, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the applications. Following the receipt of those applications, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection and , as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. VA also informed of the information and evidence necessary to substantiate his claim of entitlement to additional compensation due to the presence of a dependent child. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. That duty requires VA to make reasonable efforts to obtain relevant records (including private records) that the Veteran adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1). However, the duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103. In this case, VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting his treatment at the Cook County Hospital from March 1984 to August 1985; records reflecting his treatment at or through the Mississippi Statement Penitentiary from October 1988 to June 1992; records reflecting his VA treatment from October 1997 through February 2011; and the transcript of his November 2010 hearing before the undersigned Acting Veterans Law Judge. In May 2003, September 2006, April and June 2007, December 2009, January 2010, and February 2011, VA examined the Veteran to determine, in part, the nature and etiology of his hepatitis C and prostate disorder. The VA examination reports show that generally, the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis The Service Connection Claims The Veteran seeks entitlement to service connection for hepatitis C. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. For certain disabilities, service connection may be presumed when the Secretary of VA determines that they are the result of inservice exposure to herbicides, such as Agent Orange. 38 U.S.C.A. § 1116 (West 2002 and Supp. 2009); 38 C.F.R. § 3.309(e) (2008). Those disabilities consist of AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Such diseases must have become manifest have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C.A. § 1116 (West 2002 and Supp. 2009);38 C.F.R. § 3.307(a)(6). A presumption of service connection for a particular disability based on exposure to Agent Orange does not attach, however, unless specifically so determined by the Secretary of VA. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Nevertheless, the law does not preclude a veteran from establishing service connection with proof of direct causation. See Brock v. Brown, 10 Vet. App. 155 (1997). Indeed, service connection may 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). Special considerations attend the cases of combat veterans. 38 U.S.C.A. § 1154(b). For any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Section 1154(b) does not, however, create a statutory presumption that combat veteran's alleged disease or injury is service-connected. The veteran must still meet his evidentiary burden with respect to service connection. Section 1154(b) sets forth a three-step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. As the first step, it must be determined whether the veteran has proffered satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. (Satisfactory lay or other evidence under 38 U.S.C.A. § 1154(b) means credible evidence. Caluza. VA is not required to accept statements or testimony that is inherently incredible. See Samuels v. West, 11 Vet. App. 433 (1998). Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." The statute provides that if these two inquiries are met, VA shall accept the veteran's evidence as sufficient proof of service- connection, even if no official record of such incurrence exists. Thus, if a veteran satisfies both of these inquiries mandated by the statute, a factual presumption arises that the alleged injury or disease is service-connected. Section 1154(b) makes the resolution of these inquiries very favorable to the veteran by providing that the VA shall resolve every reasonable doubt in favor of the veteran. The presumption is, however, rebuttable. The VA may rebut the presumption by presenting clear and convincing evidence to the contrary. Thus, as the third step in the analysis, it must be determined whether the government has met its burden of rebutting the presumption of service-connection by clear and convincing evidence to the contrary. Collette v. Brown, 82 F. 3d 389, 392-93 (1996). The Board acknowledges that the Veteran is competent to give testimony about what he experienced in and after service. For example, he is competent to report his symptoms, such as when he began to experience urinary frequency. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a lay person, however, he is, generally, not qualified to render opinions which require medical expertise, such as the diagnosis of those symptoms or the cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, his opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay expertise. 38 C.F.R. § 3.159(a). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Hepatitis C The Veteran contends that he has hepatitis C, primarily as a result of wounds sustained during his service in the Republic of Vietnam. During his November 2010 hearing, he testified that it was also due, at least in part, to a pierced ear in service in 1968. Finally, he contends that his hepatitis C is due to his exposure to Agent Orange in the Republic of Vietnam. In any event, he maintains that service connection for hepatitis C is warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. A review of the Veteran's service treatment records and the reports of his March 1966 service entrance examination and his March 1971 service separation examination are negative for any complaints or clinical findings of hepatitis C in service. Indeed during his service entrance and separation examinations, he responded in the negative, when asked if he then had, or had ever had, stomach, liver, or intestinal trouble, or jaundice. Moreover, the physical examinations showed that his anus and rectum and abdomen and viscera were normal. Hepatitis C was first manifested during VA treatment in 2002 and confirmed by a liver biopsy in March 2004. That disorder was also confirmed during a VA examination in February 2011. However, there is no competent evidence on file of a nexus between that disorder and any event in service. During VA treatment in December 2002, it was noted that there were certain risk factors for developing hepatitis C such as intravenous drug abuse, blood transfusions, tattoos, nasal cocaine, body piercings, or mucosal exposure. While the Veteran was clearly wounded in service, he acknowledged during his November 2010 hearing that he had not received any transfusions in association with his wounds. Although he testified that he was exposed to the bodily fluids of other wounded soldiers (a contention that is potentially consistent with the circumstances, conditions, or hardships of this combat veteran), he denied such exposure during his February 2011 VA examination. Such contradictory statements tend to damage his credibility and militate against his claim. Moreover, the most recent VA examiner noted that soon after the Veteran was wounded in service, he had received medical attention without contamination and that the wounds had healed well within a few weeks. He also confirmed that there had been no exposure to the blood of other Veterans in service. Therefore, the VA examiner concluded that it was less likely than not that the Veteran's hepatitis C was related to his injuries in service. Taken together, the diagnosis of hepatitis C many years after service, the Veteran's contradictory statements regarding his exposure to bodily fluids of other soldiers in service, and the VA examiner's opinion, the Board finds clear and convincing evidence that rebut any presumption that the Veteran's hepatitis C is related to his combat in service. During his hearing, the Veteran noted that he had had an ear pierced in service. While body piercings are a risk factor for the development of hepatitis C, there is no competent evidence on file that the Veteran's pierced ear was in any way related to the development of hepatitis C many years later. However, that finding does not end the inquiry. The Veteran contends that his hepatitis C is the result of his exposure to Agent Orange in the Republic of Vietnam. By virtue of his service in the Republic of Vietnam, the Veteran is presumed to have had such exposure. Therefore, he may take advantage of the presumptions regarding associated diseases. 38 C.F.R. § 3.307(a)(6)(iii). The presumptive diseases are selected by VA based on periodic review and evaluation by the National Academy of Sciences (NAS) of the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides. See Agent Orange Act, Feb. 6, 1991, P.L. 102-4, § 3, 105 Stat. 13; Aug. 14, 1991, P.L. 102-86, Title V, § 503(a), (b)(1), 105 Stat. 424, 425. A disease is considered presumptively associated with herbicide exposure if there is a positive statistical association shown by analysis of medical and scientific evidence; an association is considered positive if the credible evidence for the association is equal to or outweighs the credible evidence against the association. See 38 U.S.C.A. § 1116(b); 38 C.F.R. § 1.17(d)(1). NAS published its initial findings in 1993, and then, beginning in 1996, has published biennial reviews. After reviewing the NAS findings and other information, VA has periodically updated its regulations. To date, however, the VA Secretary has found no evidence of an association between exposure to Agent Orange and the development of hepatitis C. Moreover, the Veteran has not presented any competent evidence of such a relation. Therefore, service connection is not warranted on a direct or presumptive basis. Inasmuch as there is no competent evidence of hepatitis C in service and inasmuch as there is no competent evidence of a nexus between that disorder and any event in service, the Veteran does not meet the criteria for service connection. Accordingly, service connection for hepatitis C is not warranted, and the appeal is denied. The Prostate Disorder The Veteran also contends that he has a prostate disorder, primarily as a result of his exposure to Agent Orange in the Republic of Vietnam. Therefore, he maintains that service connection for a prostate disorder is warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. A review of the Veteran's service treatment records and the reports of his March 1966 service entrance examination and his March 1971 service separation examination are negative for any complaints or clinical findings of hepatitis C and a prostate disorder in service. Indeed during his service entrance and separation examinations, he responded in the negative, when asked if he then had, or had ever had, frequent or painful urination or a kidney stone or blood in his urine. Moreover, the physical examinations showed that his genitourinary system, anus and rectum, and abdomen and viscera were normal. Although the reports of his treatment in service in April 1971 show that the Veteran complained of right flank pain and dysuria, those complaints were found to be associated with a contusion sustained while playing basketball. There was no evidence of a prostate disorder. A prostate disorder, characterized as possible benign prostatic hypertrophy with urinary frequency was first manifested during VA treatment in May 2000, and the diagnosis was confirmed in April 2001. In addition, prostatitis was reported during VA treatment in March 2003. Both disorders were confirmed during a VA examination in February 2011; however, there is no competent evidence on file of a nexus between either of those disorders and any event in service. The primary thrust of the Veteran's contentions is that his benign prostatic hypertrophy and prostatitis are the result of his exposure to Agent Orange in the Republic of Vietnam. By virtue of his service in the Republic of Vietnam, the Veteran is presumed to have had such exposure. Therefore, he may take advantage of the presumptions regarding associated diseases. 38 C.F.R. § 3.307(a)(6)(iii). While the VA Secretary has identified prostate cancer as being associated with exposure to Agent Orange, he has not done so with respect to benign prostatic hypertrophy or prostatitis. Moreover, the most recent VA examiner opined that it was less likely than not that either of those disorders was related to service. The Veteran has presented no competent opinion to the contrary; and, therefore, the Board concludes that the Veteran's benign prostatic hypertrophy or prostatitis are result of Agent Orange exposure. Inasmuch as there is no competent evidence of a prostate disorder in service and inasmuch as there is no competent evidence of a nexus between the Veteran's benign prostatic hypertrophy or prostatitis and any event in service, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a prostate disorder is not warranted, and the appeal is denied. Additional Considerations In arriving at these decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Claim for Higher Compensation Due to the Presence of a Dependent Child Finally, the Veteran seeks entitlement to additional VA compensation for a dependent child, D. R. S. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. The additional allowance is payable from the effective date of the rating if proof of dependency is received within one year from the date of notification of such rating action. See 38 U.S.C.A. § 5110(f). The allowance is generally discontinued when a child turns 18, or when the child turns 23 if he is enrolled in school. See 38 C.F.R. § 3.503. The Veteran was granted entitlement to service connection for PTSD in May 2007 and assigned a 30 percent disability rating, effective September 16, 2004. In a May 2007 letter, the RO informed the Veteran of this award and requested that he submit a VA Form 21-686c, "Declaration of Status of Dependents." The Veteran submitted the requested VA Form 21-686c in July 2007. In March 2008, he submitted a VA Form 21-674, "Request for Approval of School Attendance" as to his son, D. R. S., indicating that he had been enrolled in school from August 2001 to August 2008. During his November 2010 hearing before the undersigned, the Veteran contended, essentially, that because his son had been enrolled in an educational program and had been under 23 at the time. The Veteran noted that while the Veteran was in school, the 30 percent evaluation had been established for his PTSD. Therefore, he maintained that he was entitled to additional compensation. As noted in the Board's February 2011 remand, the record does not contain the Veteran's son's birth certificate, and there has been demonstrable inconsistency in the Veteran's reporting of his son's birth date. For example, in the July 2007 VA Form 21-686c, the Veteran reported his son's birthday occurring in April 1982 and, in the March 2002 service connection claim, the Veteran reported his son's birthday as occurring in April 1981. In a January 1986 VA Form 22-1990, "Veteran's Application for Education Benefits," the Veteran reported his son's birthday as April 1983 and, in an August 1992 VA Form 22-1990, he reported his son's birthday as March 1982. In addition, it was noted that the Veteran had not submitted evidence, aside from the VA Form 21-674, of his son's enrollment in the educational program. In February 2011, the AMC requested that the Veteran submit D. R. S.'s birth certificate, proof of his enrollment at an educational institution, and verification of his credit hours. In September 2012, the Veteran submitted another VA Form 21-686c, "Declaration of Status of Dependents." He indicated that D. R. S. had been born in Chicago, Illinois on April [redacted], 1981 and was his biological child. However, the Veteran did not submit a birth certificate for D. R. S., nor did he submit proof of D. R. S.'s enrollment at an educational institution or verification of his credit hours. As noted above, the duty to assist the Veteran is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). Rather, VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role. If a 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. Wood v. Derwinski, 1 Vet. App. 406 (1991). Where, as here, evidence requested in connection with an original claim is not furnished within 1 year after the date of request, the claim is considered abandoned. 38 C.F.R. § 3.158 (2012). Accordingly, the claim for higher compensation due to the presence of a dependent child is not warranted, and the appeal is denied. ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a prostate disorder is denied. Entitlement to higher compensation due to the presence of a dependent child is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs