Citation Nr: 1304050 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 08-06 499 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to service connection for hepatitis C, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1966 to December 1968. The record shows that the Veteran served in the Republic of Vietnam during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision that denied service connection for hepatitis C. This matter was previously before the Board in February 2011, when it was remanded for additional development. The Veteran testified at a Travel Board hearing that was chaired by the undersigned Veterans Law Judge at the Phoenix RO in November 2010. A transcript of the hearing has been associated with the Veteran's VA claims file. The Board has reviewed both the physical claims file as well as the file located on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides such as Agent Orange. 2. The Veteran was diagnosed with hepatitis C in 2002. 3. Hepatitis C is not a disease shown to be associated with exposure to herbicides, including Agent Orange, and is not otherwise related to the Veteran's period of active service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. 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. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012). The 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. 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements: (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 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011). Compliance with the first Quartuccio element requires notice of these five elements. See id. at 486. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board finds that the duty to notify has been satisfied. VCAA notice letters sent in April 2006 and February 2008 informed the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letters further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, see Quartuccio, supra, as well as notice regarding the downstream disability rating and effective date elements of a pending claim for service connection. The Board also finds that the notices were timely sent. The first notice was sent prior to the initial adjudication in December 2006, and the claim was readjudicated in April 2008 after the second notice was provided. See Pelegrini, 18 Vet. App. at 119-120; see also 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). Additionally, pursuant to the Board's February 2011 remand directive, a VCAA notice letter regarding the risk factors for hepatitis C was sent in February 2011, and the claim was readjudicated in February 2012. Id. The Board concludes that the duty to assist has also been satisfied. The Veteran's service treatment records (STRs) and post-service medical records have been associated with the claims file. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim. The Veteran has also been afforded a VA examination in April 2011, pursuant to the Board's February 2011 remand directive. The examination report indicates a review of the claims file and the Veteran's medical history, and provides an opinion with supporting rationale that is also supported by the other evidence of record. The Board finds the examination report to be adequate for adjudication on the merits. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Finally, the Board finds that there has been substantial compliance with its February 2011 remand directive, as mentioned above. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Relevant Law and Regulations Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection on a direct basis requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection can also be granted on a presumptive basis. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. See 38 C.F.R. § 3.309(e) (2012). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam Era. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the veteran was not exposed to any such agent. 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2011); 38 C.F.R. § 3.307(a)(6)(iii) (2012). In order to benefit from the presumption of service connection for diseases associated with herbicide exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R § 3.309(e). The diseases presumed to be caused by herbicide exposure include 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, 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), and soft- tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 72 Fed. Reg. 32395, 32397-32398 (June 12, 2007). This finding is based on scientific studies which have been reviewed and evaluated by the National Academy of Sciences (NAS). See id.; see also Notice on Health Outcomes Not Associated With Exposure to Certain Herbicide Agents (Notice), 75 Fed. Reg. 81332, 81333 (December 27, 2010). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). A veteran who served during wartime service after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111 , 1137. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111 , VA must show, by clear and unmistakable evidence, that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306(a) ; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity. 38 C.F.R. § 3.306(b) . This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Id. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) . The Board notes that the presumption of soundness can be rebutted by clear and unmistakable evidence consisting of the Veteran's own admission of a pre-service history of medical problems during in-service clinical examinations. See Doran v. Brown, 6 Vet. App. 283, 286 (1994) Regarding hepatitis C, VA has concluded that risk factors include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure to blood while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See Veterans Benefits Administration (VBA) letter 211B (98-110), November 30, 1998. A VA "Fast Letter" issued in June 2004 (Veterans Benefits Administration (VBA) Fast Letter 04-13, June 29, 2004) 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 re-use of needles for tattoos, body piercing, and acupuncture. See VBA Fast Letter 04-13 (June 29, 2004). Analysis The Veteran has asserted that he developed hepatitis C as a result of active duty service. Specifically, he believes it is due to Agent Orange exposure, immunizations, dental work, or treatment for a laceration to the hand. At the outset, the Board takes note of the fact that the Veteran is confirmed to have served within the territorial borders of Vietnam during the Vietnam Era, and thus is presumed to have been exposed to herbicides. See 38 C.F.R. § 3.307(a)(6)(iii) (2012). The Veteran's STRs show that he entered and separated from service without having jaundice or any other liver problems. See Reports of Medical History dated December 13, 1965, and December 10, 1968. He is presumed sound on entrance. A laboratory report finding of gram negative intracellulardiplococci suggests the Veteran had gonorrhea while in service. See STR laboratory report dated May 1, 1968. The first post-service record indicating a hepatitis C diagnosis is dated in 2002. The Veteran's private physician diagnosed chronic hepatitis C, and noted the Veteran had a history of IV drug abuse from thirty years before, as well as a blood transfusion at the age of 13. A liver biopsy was recommended. See Gastrointestinal evaluation form dated December 31, 2002. The liver biopsy confirmed hepatitis C. See Pathology report dated June 18, 2003. A hepatitis consultation at the VA medical center (VAMC) noted the Veteran's possible risk factors for acquiring hepatitis C are his exposure to blood in Vietnam, as well as a blood transfusion in the early 1960's when the Veteran had one of his lungs removed. See VA medical record dated October 4, 2007. In a prescription note, the Veteran's private gastroenterologist opined that the Veteran may have acquired hepatitis C during service while in Vietnam. See Dr. H. H., dated November 16, 2010. A rationale was not provided. The Veteran attended a VA examination in April 2011. The VA examiner indicated the Veteran's claimed risk factors, including the immunizations, the laceration treatment, the dental work, and Agent Orange exposure, are not medically known to increase the risk of contracting hepatitis C. She further indicated that, although the Veteran denied engaging in high risk sexual activity, he was treated for gonorrhea in service. She noted that his blood transfusion as a teenager also posed a risk for acquiring hepatitis C. The VA examiner opined that it was less likely that the Veteran acquired hepatitis C in service. She explained that the factors he cited are not known to cause hepatitis C, and that there was no evidence of blood exposure during his medical treatments. She stated that the blood transfusion he received (prior to service) was a significant risk, and that it was the likeliest cause. She further commented that Dr. H. H.'s opinion that hepatitis C may have been contracted in service lacked a rationale, and it was unclear that Dr. H. H. considered the Veteran's blood transfusion prior to service. See VA examination dated April 7, 2011. As discussed below, the Board finds that the preponderance of the evidence weighs against the Veteran's service connection claim. Service connection for hepatitis C may not be granted on a presumptive basis. Hepatitis C is not among the diseases presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e) (2012). However, while service connection is not warranted on a presumptive basis, such a finding does not preclude the Veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). In order to find service connection on a direct basis, the evidence will need to show that the Veteran has a current diagnosis, that the Veteran incurred a disease or injury in service, and that the current diagnosis is related to that disease or injury incurred in service. See Shedden¸supra. Here, the evidence shows that the Veteran has been diagnosed with hepatitis C. The evidence also shows that the Veteran entered service in sound condition. Although hepatitis was reported by the April 2011 examiner as having preexisted service, the presumption of soundness is not rebutted given the lack of clear and unmistakable evidence establishing a preexisting disability which is the first prong of the two prong rebuttal standard. In this regard, while the Board will accept his history of having undergone a blood transfusion prior to service. There is, however, no clear and unmistakable evidence that such transfusion produced hepatitis C as the examiner alleges. Thus, the presumption of soundness is not rebutted. However, even if the Board were to concede that hepatitis C preexisted service, there is no evidence of inservice aggravation. The Board concludes that the Veteran entered service in sound condition. The service treatment records are entirely silent with respect to hepatitis C or any related disability despite his receipt of immunizations, his undergoing dental work, and his treatment for a laceration to the hand. See Service Immunization Record; STRs dated February 19, 1967, and December 17, 1968 The final element of service connection requires a nexus, or relationship, between the Veteran's current diagnosis and his active duty military service. The April 2011 VA examiner opined against a relationship between the Veteran's hepatitis C and his military service. She explained that the factors listed by the Veteran as possible sources of his infection are not medically known to contribute or cause hepatitis C. With regard to the medical and dental treatments he received, she noted that there was no evidence to show that he was exposed to blood other than his own. The VA examiner noted that the Veteran's private physician, Dr. H. H., did not provide any support for his opinion that there was a relationship between hepatitis C and service. The Board finds this opinion from a medical professional to be both competent and credible, and accords it significant weight. The Board acknowledges the October 2007 VAMC record that lists "exposure to blood" in Vietnam as a risk factor. There is no evidence in the record, and the Veteran has not contended, that he was exposed to blood other than his own during active duty. As the record does not support this as a risk factor applicable to the Veteran, the Board does not place any weight on it. The Board also acknowledges Dr. H. H.'s November 2011 opinion that hepatitis C may have been contracted while in service. Like the VA examiner, the Board observes that Dr. H. H. did not provide any explanation or supporting rationale for this equivocal statement. Consequently, the opinion is not probative to the issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). The Board has considered the Veteran's assertions that Agent Orange, immunizations, dental work, and treatment for a lacerated hand caused his hepatitis C. See, e.g., Claim received April 7, 2006; Travel Board hearing transcript pages 4-7; VA examination dated April 7, 2011 page 1. The Veteran, as a layperson, does not have the medical background or expertise to competently determine the etiology of his hepatitis C diagnosis. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The VA examiner noted that the factors cited by the Veteran are not medically known to cause hepatitis C. The Board finds the Veteran's contentions outweighed by the medical findings of the VA examiner. Additionally, in regard to the Agent Orange, as discussed above, VA has determined, based on a National Academy of Science report issued in June 2007, that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32395-01 (June 12, 2007); see also Notice, 68 Fed. Reg. 27630-01, 27637 (May 20, 2003) (Diseases Not Associated with Exposure to Certain Herbicide Agents). The record contains no competent evidence demonstrating a connection between hepatitis C and Agent Orange exposure. Regarding the Veteran's other cited factors, the Board notes, as above, that the Veteran is not competent to render an etiological opinion on this issue, and that the VA examiner's opinion outweighs the Veteran's lay assertions. See Davidson, 581 F.3d at 1316; Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Washington, 19 Vet. App. at 368; Layno, 6 Vet. App. at 469-71. The Board acknowledges the Veteran's contentions that his doctor thought the immunizations the Veteran received at entrance were the likeliest source of his hepatitis C infection. See Travel Board transcript page 7. The Veteran's doctor, however, was unwilling to put this opinion in writing, and the Board accords this testimony no weight. See Robinette v. Brown, 8 Vet. App. 69, 77 (1999) (the connection between what a physician said and the layman's account of what he purportedly said, filtered through a laymen's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence). Indeed, the Veteran's representative testified that it is not known whether the Veteran's inoculations were given with used needles, just that the method of giving inoculations changed after the Veteran's entrance due to unsanitary conditions and efficiency issues. See Travel Board transcript page 6; see also DRO hearing pages 4-5. Further, as the VA examiner pointed out, there is no evidence that any of the Veteran's medical procedures in service exposed him to blood other than his own. As such, the Board finds that there is no competent evidence linking the Veteran's asserted risk factors to his hepatitis C. For these reasons, the Board must deny the claim for service connection for hepatitis C. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for hepatitis C is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs