Citation Nr: 1313435	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  10-36 431A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for hepatitis C, to include as secondary to service-connected posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Amanda Christensen, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1967 to July 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Muskogee, Oklahoma.                  

In August 2012, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the Veteran's claims folder.  

In September 2012, the Board remanded the Veteran's claim for additional development, including obtaining a medical opinion.  The claim has since been returned to the Board for further appellate action.  The Board is satisfied there was substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The evidence indicates that hepatitis C is related to service and attributable to the Veteran's service-connected PTSD.


CONCLUSION OF LAW

The criteria for establishing service connection for hepatitis C have been met. 38 U.S.C.A. §§ 105, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.301, 3.303, 3.310 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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)(1).  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a  Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2009.  In the letter, the RO informed the Veteran of what evidence was required to substantiate his claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence.  In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established.  As such, the VCAA duty to notify was satisfied by way of the December 2009 letter.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The Board finds that all necessary development has been accomplished.  The RO has obtained the Veteran's service treatment records and VA treatment records.  The Veteran has also submitted statements.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Although in its September 2012 remand the Board ordered the RO obtain the Veteran's VA treatment records from January 1996 to July 2006 based on the Veteran's testimony that he was first diagnosed with hepatitis C at the Okalhoma VAMC in 1996, in October 2012 the Veteran contacted the VA and said he has in fact only been receiving care from the VA since 2006 so no earlier records exist.  

The VA has also obtained a VA medical opinion as to the nature and etiology of the Veteran's hepatitis C, as required by the Board's September 2012 remand.  The examiner, a medical professional, reviewed the Veteran's claims file and offered an opinion supported by rationale that is adequate and contains sufficient information to decide the issue of service connection.

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  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, 16 Vet. App. 183.

Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation.  They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, during the August 15, 2012 Board video hearing, the VLJ fully explained the issue on appeal.  The Veteran was assisted at the hearing by an accredited representative from the Oklahoma Department of Veterans Affairs, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed hepatitis C.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim and specifically inquired as to when and where the Veteran was diagnosed with hepatitis C and whether any of his other doctors had opined as to its etiology.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error.

Service Connection

The Veteran contends that he acquired hepatitis C as a result of service.  Specifically, he asserts that he started using intravenous drugs in service as a result of his posttraumatic stress disorder (PTSD) and acquired hepatitis C through that intravenous drug use.  The Veteran is service-connected for PTSD.  

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder.  38 C.F.R. § 3.310 (2012).  

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  
 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  

A disease incurred during active service will not be deemed to have been incurred in the line of duty if it was a result of the person's own willful misconduct, including abuse of alcohol or drugs.  38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(a), (d).  The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct.  38 C.F.R. § 3.301(c).  Drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects.  38 C.F.R. § 3.301(d).

In a December 2009 statement the Veteran attributed his hepatitis C to either intravenous drug use or contact with another soldier with the disease while in Vietnam.  At his August 2012 hearing the Veteran testified that he shared needles with four friends in Vietnam and also moved injured soldiers.  In a March 2010 statement the Veteran said that during Vietnam and after service he used intravenous drugs to cope with the stress and trauma from combat.  He testified in December 2009 that he did not use drugs prior to service and after service he used a new syringe every time.

Service treatment records show no diagnosis of or treatment for hepatitis C while in service.  VA medical records show the Veteran was first notified of a positive hepatitis C test in October 2006.  

In August 2009 the Veteran was evaluated at the VA for hepatitis C.  He reported that he first was diagnosed with the disease in 2006.  He reported the following risk factors: tattoos from 1972 to 2008, not all done in licensed parlors; intravenous drug use from 1968 to 2005; cocaine use from 1968 to 2005; multiple sexual partners; and contact with blood during combat from 1967 to 1968.  In addition to those factors, at a March 2009 appointment he also reported having blood transfusions in 1981.  In January 2012 the Veteran underwent a psychological assessment of readiness for hepatitis C treatment at the VA.  In addition to the risk factors he listed in 2009, the Veteran also reported sharing toothbrushes and razors while in prison.

Two medical doctors have opined as to the source of the Veteran's hepatitis C infection.

Two letters from the Veteran's primary care physician at the VA, dated in August 2010 and September 2010, link the Veteran's currently diagnosed hepatitis C to in-service intravenous drug use due to his service-connected PTSD.  In the September statement, the doctor opined that the Veteran used intravenous drugs in Vietnam to cope with PTSD and at times had to share syringes with fellow soldiers, which is how he was infected with hepatitis C.

In December 2012 a VA examiner offered a medical opinion that the Veteran's hepatitis C was less likely than not incurred in or caused by an in-service injury, event, or illness.  The doctor explained that the Veteran's service treatment records contain no evidence that the Veteran used intravenous drugs in service, nor do they contain any reference to the Veteran having stress-related problems.  The doctor noted the multiple risk factors reported by the Veteran, including tattoos, intravenous drug use, multiple sexual partners, and blood transfusions.  The doctor noted there is no test to determine the etiology of the Veteran's hepatitis C and the Veteran has multiple risk factors.  The doctor also opined that the Veteran's high-risk behavior was not caused or exacerbated by his PTSD.

Although the Veteran has also offered a nexus opinion in this case, the Board finds he is not competent to do so.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's 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).

Considering the remaining nexus opinions, both by medical professionals, the Board finds that affording the Veteran the benefit of the doubt as required, a nexus between his hepatitis C and service has been established.

The Veteran has been consistent in his statements in medical records and to the VA that he first began using intravenous drugs in service.  While, as the December 2012 VA examiner noted, the Veteran's service treatment records contain no mention of his drug use, the Board does not find such a fact dispositive.  Drug use would ordinarily be shown in the service records only if the Veteran sought treatment for drug use, or if he were caught with drugs.  Otherwise, it would not ordinarily be reported.  The Board finds the Veteran is competent and credible to testify as to his drug use in service, including that it began in service and that he shared needles.

The Board also finds credible the Veteran's testimony that he began using intravenous drugs to cope with the stress from combat.  Although, as the December 2012 VA examiner noted, the Veteran's service treatment records contain no reference to him having stress-related problems, the Board notes the Veteran is service-connected for post-traumatic stress disorder with a verified stressor of having come under enemy attack.  The opinion from the Veteran's primary care physician also supports his contention that his drug use stemmed from his coping with stress in Vietnam.  

Citing the Veteran's numerous risk factors, the December 2012 VA examiner essentially opined that it is impossible to determine how the Veteran acquired hepatitis C.  This is not the equivalent of a negative opinion, but is, essentially, no opinion at all.  The Veteran's primary care physician, however, offered a less equivocal etiology opinion, stating that the Veteran's hepatitis C was from sharing needles in service.

Giving the Veteran the benefit of the doubt, the Board finds that there is a nexus between the Veteran's hepatitis C and service, specifically that he acquired the disease from his intravenous drug use in service, which was a result of his now service-connected PTSD.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).




ORDER

Entitlement to service connection for hepatitis C secondary to service-connected posttraumatic stress disorder is granted.




____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs