Citation Nr: 1307598 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-31 974A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a cervical spine disability ("neck disability"). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2007 and January 2008 rating decisions by which the RO, in pertinent part, denied entitlement to the benefits sought herein. In connection with this appeal, the Veteran requested a personal hearing before a Veterans Law Judge at the RO. He withdrew his hearing request in February 2013. See 38 C.F.R. § 20.704(e) (2012). Accordingly, the Board will proceed with consideration of the Veteran's claims based on the evidence of record, as he has requested. FINDINGS OF FACT 1. Hepatitis C was not clinically evident during the Veteran's active service or for many years thereafter, and his current hepatitis C is not causally related to his active service or any incident therein. 2. A neck disability was not present on service separation or within the first post-service year, neck symptoms were not continuous since service separation, and a neck disability is not otherwise shown to be causally related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in or a result of service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A neck disability was not incurred in or a result of service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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). Hepatitis C is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). It applies, however, to the claimed neck disability, which entails arthritis, a chronic disability under 38 C.F.R. § 3.309(a). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires (1) medical evidence of a 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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 of 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). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Hepatitis C The service treatment records contain no diagnosis of hepatitis C. Furthermore, service records do not reflect any risk factors for hepatitis C such as tattoos, intravenous drug abuse, or blood transfusions. A review of the record reveals that in March 1973, the Veteran received hospital treatment in Heidelberg following an assault that led to a concussion and loss of consciousness. Hepatitis C was diagnosed in 2002; there is no medical information in the record concerning its etiology or likely date of onset. The Veteran alleges that it is due to lacerations sustained during service in Europe. Additionally, in his June 2008 notice of disagreement, he maintained that he "could" have undergone a blood transfusion in service or that needles used during his period of service might have been contaminated. The Board acknowledges that the Veteran might well have sustained lacerations during the March 1973 assault that took place in Mannheim. The Veteran sustained a concussion, became unconscious, and received hospital treatment. An assault sufficiently severe to cause a concussion with loss of consciousness might well have produced lacerations. Treatment records do not indicate the presence of lacerations; however, the Veteran's account of lacerations is consistent with the nature of his injury, and the Board finds him credible in this regard. See Caluza, supra. Furthermore, the Veteran is competent to report the presence of lacerations, as they are readily apparent via the senses. See Layno, supra. However, assuming, arguendo, that lacerations were sustained does not point to a hepatitis C risk. The fact that one has cuts or open wounds does not imply contact with contaminated blood. This treatment does not make it as likely as not (50% chance or greater) that this injury has caused this disability. The Veteran next suggests that he might have undergone a contaminated blood transfusion or injected with contaminated needles. The Board does not find these assertions likely. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); see also Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). The record does not show that the Veteran underwent a blood transfusion, and the Board finds that an event as significant as a blood transfusion would have been memorialized in the medical records had it actually occurred (the Veteran treatment records are detailed). See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the service treatment records as evidence contradictory to the Veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Because a transfusion is not recorded in the contemporaneous medical records, the Board concludes that it did not occur. Similarly, the Board rejects the notion that the Veteran contracted hepatitis C from contaminated needles used during treatment in service. The Veteran does not specify the circumstances in which such needles may have been used and provides no explanation as to why he believes that he was injected with contaminated needles during medical treatment in service. In this regard, the Board does not suggest it is "impossible" but simply that it is less likely that this is the reason the Veteran has this disability (less than a 50% chance based on the facts of this case). As it stands, the Veteran has not supplied any concrete rationale for why he thinks contaminated needles were used in medical treatment during his period of service. Consequently, the Board finds that his assertions regarding contact with dirty needles in service lack credibility, especially since he has not alleged intravenous drug abuse and merely posits the theory that a medical professional might have used a contaminated needle at some point during service. Id.; see also Wensch, supra; Wood, supra. As stated, hepatitis C was diagnosed in 2002, many years after service from February 1972 to February 1975. The Veteran's theories regarding in-service onset due to blood transfusions or contact with contaminated needles, as outlined above, are not found to provide a basis to grant this claim (while no "impossible' reasons, not the as likely as not cause of the problem). The Veteran's suggestion that lacerations sustained in service caused hepatitis C does not constitute competent evidence. Although a lay person is competent to provide an opinion on some medical issues, see Kahana v. 24 Vet. App. at 435, the specific issue in this case, namely the origins of hepatitis C, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hence, the Veteran, being a lay person with no demonstrated medical expertise, is not competent to provide an opinion regarding the origins of his hepatitis C, and his assertions in this regard do not constitute competent evidence upon which the Board may rely. The record contains no competent medical evidence linking the Veteran's hepatitis C, diagnosed in 2002, close to three decades after service separation, to service, making the chances that this disability has any connection with service unlikely (less than a 50% chance). Due to the lack of competent evidence of a nexus between the Veteran's current hepatitis C and service, service connection for hepatitis C is denied. 38 C.F.R. § 3.303; Shedden, supra. In conclusion, this is not a case where the evidence is in relative equipoise; rather, there is no competent evidence that reflects that the Veteran's currently diagnosed hepatitis C is related to service. In such cases, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra; Gilbert, supra. Neck disability The service treatment records reflect a diagnosis of paracervical strain in 1972. Furthermore, in March 1973, the Veteran suffered a concussion and lost consciousness pursuant to a physical assault. On service separation, the spine was found to be normal, and no defects regarding the neck were noted. In his claim for benefits, the Veteran asserted that he has been experiencing neck symptomatology since the 1973 in-service assault. After service, the Veteran underwent several neck surgeries. The Board notes, however, that the record contains no medical evidence dated before the turn of the Millennium. Thus, there is no evidence related to the neck in the years immediately following service from February 1972 to February 1975. In January 2008, the Veteran was afforded a VA spine examination. The examiner diagnosed status-post two-level cervical corpectomy and cervical spine spondylosis. The Board notes that in 2010, the Veteran underwent an anterior cervical discectomy and fusion (ACDF). In any event, pursuant to a review of the record and physical examination of the Veteran, the VA examiner opined that the Veteran's current cervical spine disability was unrelated to service. The examiner relied on the fact that the spine was normal on separation. The Board finds that a neck disability did not become chronic in service. The Board is aware of the diagnosis of paracervical strain in service and of the Veteran's assertions that he sustained a neck injury pursuant to an assault that led to a concussion. However, the service treatment records dated after the 1973 assault are silent as to complaints regarding the neck, and on service separation, the entire spine, to include the neck, was assessed as normal. For this reason, the Board concludes that any injury or condition of the neck in service apparently resolved. In this regard, the condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The Board acknowledges the Veteran's assertions of neck pain since the in-service assault in 1973. The Board, however, does not find these assertions credible, as the Veteran does not appear to have sought treatment for neck pain in service at any time after the 1973 assault. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the service treatment records as evidence contradictory to the Veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred); see also Wensch, supra; Wood, supra; Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). Finally, the weight of the evidence does not show that the Veteran's current cervical spine disability is otherwise related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, cervical spondylosis and related conditions fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The only competent and probative opinion of record is that of the January 2008 VA examiner. That examiner opined that the Veteran's current neck disability is unrelated to service. Based on this evidence, service connection for a neck disability must be denied. Because the weight of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra; Alemany, supra. Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely January 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence. The notice included provisions for disability ratings and for the effective date of the claim. The Veteran has not been afforded a VA medical examination with respect to the claim of entitlement to service connection for hepatitis C decided herein; however, the Board finds that VA examinations are not necessary in order to decide this claim. 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 the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). In this case, because the weight of the evidence demonstrates no in-service injury or disease consistent with the contraction of hepatitis C and no symptoms of hepatitis C or evidence of potential exposure to contaminated blood and shows that the Veteran did not manifest symptoms of hepatitis C for many years after service, there is no duty to provide a VA medical examination regarding this issue. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim of service connection for hepatitis C. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The case must be based on the facts (risk factors, etc.), not medical opinion evidence. While the Board understands the Veteran's contentions, the Board simply finds it unlikely that the causes he has cited are the cause of his current problem based on the facts of this case. The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disability would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed disability and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of both an in-service injury or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating either of the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). As to the neck disability claim, a VA examination was provided. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA spine examination provided was adequate. The VA nexus opinion provided considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the foregoing issue has been met. 38 C.F.R. § 3.159(c)(4) The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, Social Security Administration records, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. ORDER Service connection for hepatitis C is denied. Service connection for a cervical spine disability is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs