Citation Nr: 1308730 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 05-34 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hepatitis C to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran indicated in the November 2002 substantive appeal that he wanted a travel Board hearing. He withdrew his request for a hearing by written correspondence in June 2008. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and it will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (2012). The Board remanded this issue in September 2008 and May 2009 for further development. The RO continued the denial of the claim in the July 2012 supplemental statement of the case and returned these matters to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era and the medical evidence of record shows that the Veteran is currently diagnosed with hepatitis C; however, hepatitis C is not a disease associated with exposure to certain herbicide agents as enumerated under 38 C.F.R. § 3.309(e). 2. The preponderance of the evidence shows that the Veteran's hepatitis C is not related to active military service to include in-service exposure to herbicides. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied through letters dated in March 2002 and June 2009. The claim was subsequently readjudicated, most recently in a July 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, lay statements and a VA examination report dated in December 2009 with a July 2010 addendum. The December 2009 VA examination report and July 2010 addendum reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran with respect to hepatitis C. The examiner discussed the relevant evidence of record and documented the results of the evaluation. Following the above, the examiner provided an explanation for his opinion based on the Veteran's lay statements, evidence of record and medical expertise. Accordingly, the Board finds the VA examination is adequate for adjudication purposes. In addition, as noted in the Introduction, this issue was previously remanded in September 2008 and August 2009. The September 2008 Board remanded requested that the RO/AMC review the VA treatment records that had been associated with the claims file after the September 2002 statement of the case and readjudicate the issue. The December 2008 supplemental statement of the case shows that the RO reviewed VA treatment records from April 2005 to August 2005 and readjudicated the issue on appeal. The Board remanded the issue again in May 2009 to schedule the Veteran for a VA examination with respect to his hepatitis C. The claims file contains a VA examination report dated in December 2009 and a July 2010 addendum. The VA examiner answered the questions posed by the Board and the opinion provided was supported by an explanation. Accordingly, the Board finds that there has been substantial compliance with the September 2008 and May 2009 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran filed a service connection claim for hepatitis C in November 2001. He contends that his hepatitis C is due to exposure to Agent Orange while he was stationed in Vietnam. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In this case, the Veteran's VA treatment records support his claim to having a current diagnosis of hepatitis C. Thus, the Veteran has a current diagnosis of the claimed disability. In regard to the Veteran's assertion that his hepatitis C is a result of exposure to Agent Orange, the Veteran must show the following in order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in § 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The following diseases are associated with herbicide exposure for purposes of the presumption: 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), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Veteran contends that he was exposed to Agent Orange while he was stationed in Vietnam. The Veteran's DD Form 214 reveals that the Veteran had foreign service in Vietnam between September 1968 and May 1969. Thus, the evidence shows that the Veteran had service in the Republic of Vietnam during the applicable presumptive period and therefore exposure to an herbicide agent is conceded. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Nonetheless, hepatitis C is not among the statutorily enumerated diseases set forth above for which presumptive service connection is available for veterans exposed to herbicide agents during active service. Accordingly, the Veteran's hepatitis C is not entitled to the presumption of service connection due to exposure to Agent Orange. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides, but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude him from establishing, in the alternative, service connection by way of proof of actual direct causation. The Veteran's service medical records are negative for complaints of or treatment for symptoms associated with hepatitis C and the evidence does not otherwise show that he was diagnosed with or treated for hepatitis C at any time during his active duty service. During the course of the appeal, the Veteran indicated that he may have had a blood transfusion for his gunshot wounds in service, but he was not sure. He reported the same history at the December 2009 VA examination. Service treatment records show that the Veteran received two gunshot wounds in Vietnam (left thigh and right leg), but there is no documentation that he underwent a blood transfusion as part of the treatment for these wounds during military service. The Veteran does not contend and the evidence does not otherwise show that the Veteran was exposed to any other risk factors for hepatitis during military service. The first medical evidence of a diagnosis of hepatitis C is in a June 2001 VA treatment record, approximately 31 years after the Veteran was discharged from service. Such a lapse in time between separation from service and the earliest documentation of a current disability is a factor that weighs against the service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The evidence of record also shows that the Veteran had exposure to risk factors for hepatitis C after service. In this regard, the Veteran reported in an April 1984 VA treatment record that he had recently taken drugs intravenously. A December 1985 VA treatment record reveals that the Veteran had a healed surgical scar on his abdomen from being stabbed approximately four years from that date. The evidence also shows that the Veteran has been incarcerated multiple times since he left military service. The Veteran denied using intranasal cocaine use during the December 2009 VA examination. However, the examiner questioned the Veteran's reliability on this issue as the Veteran served time in prison for cocaine possession. With respect to whether the Veteran's hepatitis C is related to active military service to include any possible risk factors in service, the December 2009 VA examination report and addendum in July 2010 includes the examiner's opinion that the Veteran's hepatitis C is less likely as not related to active military service. He explained that the Veteran's service treatment records include follow up treatment for the leg wounds, but there are no surgical reports or other documentation indicating the Veteran received a blood transfusion. In the July 2010 addendum, the examiner also noted that there were no references to the Veteran having excessive blood loss or anemia in the service treatment records to indicate that the Veteran may have had a blood transfusion. With respect to the stab wound to the liver in the 1980's, the examiner observed that there are no treatment records for this incident. The examiner determined that the Veteran had multiple risk factors for hepatitis C to include polysubstance abuse, incarcerations and at least two injuries or wounds which may have required the administration of blood products. Even if there were records of a blood transfusion in service, the examiner noted that the risk factor for hepatitis C has been estimated as less than one percent per unit of blood transfused. Given such a low risk percentage in a single, unsubstantiated event versus the multiple other risk factors post military, the examiner determined that there were more opportunities for the Veteran to be exposed to hepatitis C after the military. The Board finds this opinion to be highly probative as the examiner provided a clear and thorough rationale for his opinion. In addition, the examiner based the opinion on a review of the medial records including the claims file, an examination of the Veteran including statements made by the Veteran and clinical training, experience and expertise. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The only evidence in the record that suggests the Veteran's hepatitis C is related to military service is based on the Veteran's own lay statements. Lay persons can provide an account of observable symptoms and exposure to certain risk factors. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, lay assertions regarding medical matters such as an opinion on whether a disability is related to an event, such as in this case herbicide exposure and a possible blood transfusion, has no probative value because lay persons are not competent to offer opinions that require medical expertise. The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current hepatitis C and his military service. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not for application. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); see also 38 U.S.C.A. § 5107. Accordingly, the Board finds entitlement to service connection for hepatitis C is not warranted. ORDER Entitlement to service connection for hepatitis C to include as due to herbicide exposure is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs