Citation Nr: 1304589 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-07 076A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from February 1970 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction over the case was subsequently transferred to the VA RO in Houston, Texas. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. FINDING OF FACT Hepatitis C has not been etiologically related to the Veteran's active service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2011); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in May 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The May 2006 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded appropriate VA examination. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that he contracted hepatitis C as a result of receiving an inoculation with a contaminated air injection gun while in active service. A review of the STRs of record is negative for treatment for or a diagnosis of hepatitis C while the Veteran was in active service. In November 1971, the Veteran was afforded a separation examination. There is no indication from the examination report that the Veteran complained of symptoms at the time of the examination that could be attributed to hepatitis C. Additionally, the Veteran's abdomen and viscera were found to be clinically normal upon examination at the time of his separation. A review of the post-service medical evidence of record shows that in July 1995, the Veteran was seen at the VA Medical Center for the purposes of going to rehabilitation. In August 1995, the Veteran was administered a blood test and he was found to be positive for hepatitis C at that time. The Veteran has continued to seek treatment at the VA Medical Center for his hepatitis C since that time. There is no indication from the VA Medical Center treatment notes of record that the Veteran's hepatitis C has been related to his active service, to include any air injection gun inoculations he received during service. In May 2012, the Veteran was afforded a VA examination. At that time, the Veteran reported that he had been given one or two injections with an air gun while attending boot camp in 1970. He reported that he believed that the needles had been contaminated with hepatitis C. The examiner confirmed the diagnosis of hepatitis C and opined that it was less likely than not that the Veteran's hepatitis C was incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that there was no credible medical evidence to indicate that air gun injections were related to hepatitis C. The Board notes that there are no other medical opinions of record which link the Veteran's hepatitis C to his active service, and air gun inoculations received during active service. Although the Veteran might sincerely believe that his hepatitis C was contracted through air gun inoculations administered while he was in active service, as a layperson without medical training, his opinion concerning the matter of medical causation is of no probative value. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board further notes that this is also not a case where continuity of symptoms has been claimed or substantiated, and the Veteran himself recognizes that his hepatitis C was not diagnosed until 1995. Rather, the Veteran is claiming that his 1995 diagnosis is related to the incidents of inoculations in service, without establishing any level of expertise that would provide a basis to attribute any probative value to his opinion. Moreover, even if accorded some evidentiary weight, such an opinion would clearly not be of sufficient weight to stand on an equal footing with someone who has had medical education and training and concluded that there is no credible medical evidence linking these inoculations to his hepatitis C. In this regard, the Board finds that the May 2012 VA examiner's statement can reasonably be interpreted to mean that available medical evidence both generally and specifically (in this particular case) does not support a relationship between this type of inoculation and the development of the Veteran's hepatitis C. This is further substantiated by the examiner's more specific opinion that hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Thus, the Board finds that remand for a clarifying opinion is not necessary. Accordingly, the Board finds that the preponderance of the evidence is against the claim and that entitlement to service connection for hepatitis C is not warranted. ORDER Entitlement to service connection for Hepatitis C is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs