Citation Nr: 1307780 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-19 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for thyroid cancer, to include as secondary to hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to March 1974. This appeal to the Board of Veterans' Appeals (Board) is from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. As support for his claims, the Veteran testified at a videoconference hearing in March 2012 before the undersigned Veterans Law Judge of the Board. The Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The most probative medical evidence of record does not indicate a link between the Veteran's current hepatitis C and any in-service risk factor that is not willful misconduct, particularly contamination of his blood from an inoculation gun using jet injectors. 2. The competent, probative evidence of record fails to relate the Veteran's currently-diagnosed thyroid cancer to service or a service-connected disability. CONCLUSIONS OF LAW 1. The Veteran's hepatitis C was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for thyroid cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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. Those five elements include: 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 of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. The RO notified the Veteran in October 2008, prior to the initial adjudication of the claims in August 2009, of the evidence and information necessary to substantiate his claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. This notice also advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra, the preferred sequence. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. Unfortunately, records from the Madigan Army Medical Center, where the Veteran reported received treatment for drug use in service, are incomplete. A January 2011 memorandum has determined that these records are unavailable. The Veteran has not identified any additional, outstanding records that have not been requested or obtained, relevant to these claims. The Veteran was also afforded a VA examination in January 2010, with an addendum opinion provided in January 2011, with respect to the issues decided herein. The Board finds that such VA examination and opinion is adequate to decide the issues as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. Finally, the Veteran provided relevant testimony during the hearing before the undersigned in March 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned Veterans Law Judge identified the issues on appeal, and sought to identify evidence that would be relevant to the claims. Based on the testimony provided by the Veteran, the Board finds that the hearing discussion did not reveal any evidence that might be available, but was not associated with the claims file, other than medical evidence that was to be procured. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection The Veteran asserts that his currently-diagnosed hepatitis C is due to the use of air injection guns for inoculations in service. Additionally, the Veteran also claims that his thyroid cancer is the due to, the result of, or aggravated by his hepatitis C and, specifically, the medication he uses to control his hepatitis C. For the reasons that follow, his claims shall be denied. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from a disease or injury incurred or aggravated in line of duty during service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With respect to hepatitis C, the medical community recognizes several risk factors for it, including: organ transplants before 1992, transfusions of blood or blood products before 1992, hemodialysis, accidental exposure to blood by health care workers (to include combat medics or corpsman), intravenous drug use or intranasal cocaine use, high risk sexual activity, and other direct percutaneous (through the skin) exposure to blood such as by tattooing. See VBA Training Letter 211A (01-02), dated April 17, 2001. A review of the Veteran's service treatment records reveals that, during service, he was not diagnosed as suffering from nor did he receive treatment for hepatitis C. Service personnel and treatment records do show, however, that the Veteran was placed in a drug rehabilitation program in October 1973, which apparently necessitated a temporary profile for psychiatric impairment stemming from "improper use of other psychostimulants." In this regard, the Veteran has not consistently reported his in-service drug use. He reported in April 2010, that he never used drugs during service, but testified to the undersigned his drug of choice at the time was marijuana. In any event, following service, the evidence suggests the Veteran was initially diagnosed with hepatitis C in 1980, according to two statements from a private physician, Dr. Joo, dated in October and November 2009. Dr. Joo stated that the Veteran was first diagnosed with hepatitis C about 25 years ago (so, approximately 1980, according to this letter), and that he does not have a history of intravenous drug abuse, major surgery, or transfusions. In fact, the only plausible risk factor Dr. Joo identified was the multi-use air jet injector. Therefore, in his opinion, it is at least as likely as not the Veteran's condition was caused by the vaccination device. The Veteran was examined for VA purposes in connection with this claim in January 2010, with an addendum opinion provided in January 2011. The examiner noted that the Veteran was first diagnosed with hepatitis C in 1980, approximately 6 years after his separation from service. The examiner also noted the Veteran's statements that he did not use drugs in service, but noted that the Veteran tested positive for drugs in October 1973 and was in a drug rehabilitation program for the use of psycho stimulants. As the examiner indicated, this conflicting evidence calls into question the Veteran's statement that he never used drugs in service. Additionally, despite the Veteran's statements that he was treated for hepatitis C in service, the examiner pointed to the lack of evidence supporting these assertions. Further, the examiner notes there is no evidence in the claims file concerning the Veteran's personal habits from the time of discharge in 1974 until the initial diagnosis of hepatitis C in 1980. Concerning the use of air injectors contributing to the development of hepatitis C, the examiner states the literature provides no documentation that air guns are a risk factor for hepatitis C. Therefore, based on all this information, including the fact the Veteran's statements are not support by the medical records, and there is documentation he used a psycho stimulant in service, the examiner stated that it is more likely than not that the psycho stimulant use is the cause of the Veteran's hepatitis C, and not the use of air guns. Because such drug use would be willful misconduct, any disease incurred as a result of such usage is not considered to have been incurred in line of duty, precluding an award of compensation benefits. 38 C.F.R. § 3.301(d). The Board finds that the January 2011 addendum opinion should be afforded greater probative weight than the opinion offered by Dr. Joo, as it is unequivocal, consistent with the evidence of record, and supported by a sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a probative medical opinion must reflect that the medical expert was fully informed of the pertinent factual premises, provided a fully articulated opinion, and supported the opinion with a fully reasoned analysis). Moreover, the January 2011 addendum opinion considered the Veteran's statements, his in-service treatment at a drug rehabilitation facility and purported continuity of his hepatitis C symptoms in reaching the unfavorable conclusion. The statements from Dr. Joo did none of these things and are, therefore, of limited probative value. Further, the January 2011 VA addendum opinion is corroborated by the medical evidence of record. The Board is cognizant that there is an accepted latency period that sometimes occurs between infection and eventual discovery of hepatitis C, and the fact that he is competent - even as a layman - to report having experienced potentially relevant symptoms prior to the discovery of his infection, does not make his unsubstantiated lay opinion regarding the etiology of his hepatitis C and its purported relationship to his military service more probative than that of the January 2011 VA compensation examiner's adverse opinion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1373, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 3.159(a)(1) and (2) and Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records, but also indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). Here, the Veteran, through statements submitted in support of his claim and during his March 2012 videoconference hearing, has offered his opinion that his hepatitis C is related to his active service, but he is not competent to do so. While the occurrence of risk factors is susceptible to lay observation, the diagnosis and etiology of hepatitis C are not. Jones v. Brown, 7 Vet. App. 134, 137 (1994). See also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). Further, the Board finds the Veteran's reports of his risk factors not to be credible. Again, as reported by the January 2011 VA examiner, the Veteran stated he did not use drugs during service. However, the Veteran freely testified in March 2012 that his drug of choice at the time was marijuana. Given these inconsistencies, the Board cannot find the Veteran's reports of his in-service risk factors to be credible. In summary, the Board finds that the most probative medical evidence of record does not indicate a link between the Veteran's current hepatitis C and service, that permit an award of benefits. Accordingly, the Board concludes that the criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. As for his remaining claim, the Veteran does not suggest, and the evidence does not otherwise establish, that his thyroid cancer was either incurred in service, or manifested to a degree of 10 percent within one year after service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.384. There is no indication he presented symptoms, was diagnosed with, or treated for thyroid cancer during that period. As to the claim thyroid cancer is secondary to, i.e., proximately due to, the result of, or aggravated by his hepatitis C, and specifically as a result of the medications the Veteran was prescribed to manage his hepatitis C, since hepatitis C is not a service-connected disability, thyroid cancer necessarily cannot be secondarily related to his military service by way of hepatitis C. 38 C.F.R. 3.310(a) and (b). Accordingly, the Board finds that the preponderance of the evidence also is against this claim for service connection. There is no reasonable doubt to resolve in the Veteran's favor concerning this claim, and it, too, must be denied. 38 U.S.C.A. § 5107; 38 CFR § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER The claim of entitlement to service connection for hepatitis C is denied. The claim of entitlement to service connection for thyroid cancer is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs