Citation Nr: 1310449 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 09-07 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert W. Gillikin II WITNESSES AT HEARING ON APPEAL Appellant and J.W. ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to February 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in February 2010. A transcript of the hearing has been associated with the claims file. The Board remanded these issues in November 2010 for proper notice and further evidentiary development. The Appeals Management Center (AMC) continued the denial of the claims in the May 2012 supplemental statement of the case and returned these matters to the Board for further appellate consideration. The issue of entitlement to service connection for a psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence shows that the Veteran's hepatitis C is not related to active military service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1101 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notify and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, 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 the claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that a VA letter dated in September 2007 satisfied the duty to notify provisions prior to the initial AOJ decision in January 2008. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for hepatitis C. The Veteran was notified of how VA determines the disability rating and effective date if his claim is granted. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. 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, service personnel records, VA treatment records, private treatment records, a VA examination report dated in November 2010, lay statements and a transcript of the February 2010 Board hearing. The November 2010 VA examination report 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. The examiner discussed the relevant evidence of record and documented the results of the evaluation and test results. 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 November 2010 to obtain a VA examination. The claims file contains a VA examination report dated in November 2010 that adequately addresses the issues raised in the November 2010 Board remand. Accordingly, the Board finds that there has been substantial compliance with the November 2010 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified, and the record does not otherwise indicate, any 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 matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims 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 contends that he currently has hepatitis C due to active military service. He specifically asserts that his hepatitis C was from receiving shots from an air gun during service. 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). As noted above, in order for the Veteran to be entitled to service connection for hepatitis C, the medical evidence must show a diagnosis of the claimed disability. The Board observes that the Veteran's service treatment records show that the Veteran had a positive hepatitis C antibody. A June 2003 VA gastroenterology consult shows that the Veteran shows that the it was necessary to confirm the Veteran's hepatitis C with a viral load count. An August 2003 addendum reveals that there is no evidence of an active viral infection and that he had normal liver function tests. The physician indicated that it may be a false positive test or the Veteran is one of the 20 percent that is exposed to the virus that are able to clear the virus by themselves. He determined that no further liver clinic follow up was needed. The VA examiner in November 2011 reviewed the diagnostic and clinical tests with respect to hepatitis dated in May 2007, June 2007, November 2009, September 2010 and December 2010. He noted that the Veteran has serologic maker for exposure to hepatitis C; however, he has no viral load on further testing. Additionally, the Veteran has normal biochemical markers including normal transaminase, normal prothrombin time (PT) and normal platelets. The examiner also observed that the Veteran did not have any physical findings suggesting sequelae of liver disease. Additionally, he noted that gastroenterology consultants have labeled this as a "false positive" hepatitis C marker consistent with the lack of any evidence of hepatitis C infection. The examiner determined that there is serological evidence that the Veteran does not have hepatitis C. Furthermore, a December 2010 private treatment record shows that the Veteran had a positive hepatitis C viral antibody with negative RNA and he therefore, does not currently have hepatitis C. The physician noted that the Veteran had prior infection with Hepatitis C, but he is one of the 15 percent who can clear it without treatment. Based on the foregoing, the medical evidence of record to include the laboratory test results reveal that the Veteran did not have active hepatitis C at any time during the appeal period. Although the evidence indicates that the Veteran may have had hepatitis C in the past, this is not evidence of current hepatitis C. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (the court held that the grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to some time in the distant past). Accordingly, the Board finds that the Veteran does not have a current diagnosis of hepatitis C. Furthermore, the preponderance of the evidence shows that any hepatitis C that the Veteran may have had is not etiologically related to active military service. In this regard, 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 contends that he obtained hepatitis C from shots with an air gun during active military service. The Veteran also reported high risk sexual practices during military service. He also indicated that he started using drugs, including cocaine, 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 an April 2002 VA treatment record, approximately 28 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 has long history of cocaine use after military service. A December 1984 VA treatment record shows that the Veteran reported that he had a history of cocaine abuse for the past two to three years. VA treatment records show that he uses crack cocaine and opiates and he drinks to intoxication daily. See February 2005 and May 2007 VA treatment records. He has also engaged in high risk sexual activity. See VA treatment records June 2009 and September 2012. With respect to whether the Veteran's hepatitis is related to active military service to include any possible risk factors in service, the examiner in November 2010 provided the opinion that any identified hepatitis is not caused by or a result of an in service event, to include air gun injections. The examiner considered the risk factors in service to include high risk sexual practices. With respect to the Veteran's claim that his hepatitis C was the result of air gun injections, the examiner explained that the medical literature does not support the transmission of hepatitis C via air gun. The examiner also noted that the presence of hepatitis B is a risk factor for coinfection with hepatitis C. He determined that the Veteran was exposed to hepatitis B after military service in the 1980s based on the evidence of record and the Veteran's lay statements. The examiner noted that the inoculation period for hepatitis B is about 20 weeks, but no more than 50 weeks and therefore, it would have been impossible for him to have acquired hepatitis B during service between 1969 and 1974. The examiner also noted that the Veteran had many risk factors for hepatitis C after military service. The Board finds this opinion to be highly probative as the examiner provided a clear and thorough rationale for his opinion based on the evidence of record, lay statements from the Veteran, medical knowledge and medical literature. 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 shots from an air gun, 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 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 is denied. REMAND After a review of the record, the Board concludes that a remand is necessary prior to adjudicating the remaining issue on appeal. The Veteran contends that he has PTSD and/or other psychiatric disabilities related to his active military service. The Veteran reported in August 2008 that he was beaten, choked, kicked, spit on and called derogatory names during boot camp and he has a psychiatric disorder due to these terrifying events. See August 2008 Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder. VA has special evidentiary development procedures with respect to PTSD claims as a result of personal assault, including the interpretation of behavioral changes by a clinician and interpretation in relation to a medical diagnosis. See Patton v. West, 12 Vet. App. 272 (1999) (citing VA Adjudication Procedural Manual M21-1, Part III, paragraph 5.14(c)). The Board notes that the Veteran was provided with a VA mental health examination in April 2009. The examiner diagnosed the Veteran with polysubstance abuse, depressive disorder, paranoid schizophrenia and a personality disorder. The examiner determined that the acquired psychiatric disorders were not related to service to include any behavioral issues. However, the evidence of record now indicates that the Veteran has a current diagnosis of PTSD related to the alleged physical assault in service. In this regard, a September 2009 treatment record shows that the Veteran discussed prior abuse during boot camp and that he and another black male were targeted by the officers. The clinician diagnosed the Veteran with noncombat PTSD. The Veteran's service personnel records document that the Veteran had several disciplinary actions taken against him to include two Summary Court Martials. This may be evidence of behavioral changes as result of the alleged physical and emotional abuse during boot camp. Although the examiner in April 2009 determined that these behavioral issues were not evidence of his current acquired psychiatric disabilities, he did not address whether it was evidence of abuse during boot camp that resulted in PTSD. The Veteran's attorney has also indicated that the Veteran's participation in combat support operations with Task Force Delta in Nam Phong, Thailand may have resulted in the Veteran's psychiatric disorders to include PTSD based on fear of hostile military activity. In light of the foregoing, the Board concludes that the Veteran should be provided with another VA examination to determine if his diagnoses of PTSD, major depressive disorder, schizophrenia and any other psychiatric disabilities are related to active military service to include personal assault and fear of hostile military activity. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran with a VA psychiatric examination by a VA psychologist or psychiatrist to determine the identity and etiology of any psychiatric disorder that may be present to include PTSD. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings as related to the diagnostic criteria for PTSD and other pertinent psychiatric disorders. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to provide opinions on the following: a. Whether the Veteran has PTSD and if so, please explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner should specifically determine whether the claimed in-service stressors that are consistent with the Veteran's service were sufficient to produce PTSD and whether any of the stressors are related to a fear of hostile military or terrorist activity consistent with the places, types, and circumstances of service. If the examiner determines that the Veteran has PTSD related to the claimed in-service stressor of personal assault, the examiner should review the claims folder and render an opinion as to whether there is evidence of changed behavior after the alleged assault or any other evidence of record, which would be consistent with the alleged trauma. b. If the Veteran is diagnosed with any other psychiatric disorder, then the examiner is requested to provide an opinion on whether it is at least as likely as not (i.e., a 50 percent probability or greater probability) that such psychiatric disorder is related to active military service to include any incident in service that would be consistent with the circumstances, conditions or hardships of such service. In determining whether the Veteran has PTSD or any other psychiatric disorder is related to service, the examiner is asked to review and discuss the lay statements from the Veteran in the claims file and during the examination and the medical evidence of record. The examiner should provide an explanation for all conclusions reached. 2. Upon completion of the foregoing and any other development deemed necessary, readjudicate the Veteran's service connection claim for a psychiatric disorder, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs