Citation Nr: 1319749 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-43 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a liver disability, to include hepatitis C and cirrhosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to January 1973. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). On a VA Form 9 which was received by VA in November 2009, the Veteran indicated that he desired to attend a Board hearing at his local RO. In December 2009, the Veteran indicated that he no longer desired to attend a Board hearing. The record before the Board consists of the Veteran's paper claims files and an electronic record known as Virtual VA. The issue of entitlement to service connection for a liver disability is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT A chronic back disorder was not present until more than one year following the Veteran's discharge from service, and no current back disorder is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R §§ 3.303, 3.307, 3.309 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (the Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in November 2008, prior to the January 2009 rating decision on appeal. The duty to assist has also been met in this case. The Veteran's service treatment records are associated with the claims files. Post-service treatment records have been obtained from those VA and non-VA providers identified by the Veteran as having relevant records. Records from Social Security Administration have been obtained. The Veteran has reported that he was treated for back problems in the 1970's and 1980's by private health care providers but his attempts to obtain these records were unsuccessful. He has not indicated that any further attempts could be productive. Neither the Veteran nor his representative has identified any other existing evidence that could be obtained to substantiate the back claim, and the Board is also unaware of any such evidence. The Board acknowledges that the Veteran has not been provided a VA examination to determine the etiology of his claimed back disability. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested 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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Board finds that a remand for an examination or etiology opinion is not required in this case. As explained below, the Board has determined that the Veteran's statements alleging an in-service injury of his back, the onset of back problems in service, and a continuity of back symptoms thereafter are not credible. There is no other evidence establishing that any relevant event, injury, or disease occurred in service or suggesting that arthritis of the back was manifested during the one year presumptive period following the Veteran's discharge. Therefore, VA is not obliged to provide an examination or obtain an opinion in response to this claim. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53(1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran claims that his current back disability is due to a fall which occurred during active duty. He has reported that he fell six to eight feet landing on his head. When he informed his sergeant some time later that he was going to seek treatment for back problems, he was told that he could seek the treatment but if he missed any time he would have to be recycled (start training over again). He did not want to restart so he did not seek treatment. The Veteran also claims that the symptoms continued during active duty and thereafter until the present. For example, in a statement dated in November 2008, the Veteran wrote that he was administered a battery of injections by air gun in 1971 and, after exiting the building, he fainted and fell over a stairway railing approximately six to eight feet and landed on his head. His arms went numb and he was told to perform pushups to keep from cramping. Two weeks later he informed his drill sergeant of the accident and about the numbness and pain in his arms and neck. The Veteran was informed that he could go on sick call but would be recycled if he missed any time. The symptoms remained and increased until the present. The service treatment records are negative for evidence of a back injury or any diagnosis of a back disorder. The only complaint regarding the back is recorded in an October 1971 clinical record when the Veteran sought treatment for pain in the lower back and nausea which had been present for one day. It was written that there was a history of kidney infection. Physical examination was conducted. The impression was probable urinary tract infection. There was no indication in any way that this complaint of back pain was ongoing and/or the result of a fall during basic training. The Veteran has argued that he was discouraged from seeking treatment for his injuries after the fall by a sergeant who threatened him with being recycled. While this may have been true while the Veteran was in basic training, he would not have been precluded from seeking treatment for back problems after basic training as documented by the October 1971 clinical record which includes a back complaint. The Board finds it reasonable to assume that, if the Veteran had had chronic back problems after the reported fall he would have sought treatment for it as he did for other problems. Weighing heavily against the Veteran's current memories of chronic back problems during active duty is a Report of Medical History he completed in December 1972 in conjunction with his separation examination. This document which the Veteran filled out more than a year and a half after the reported fall reveals he affirmatively indicated that he did not have and never had recurrent back pain. Furthermore, the Veteran's spine was found to be normal on the separation examination in December 1972. The first medical evidence of back or spine problems is dated many years after the Veteran's discharge. These initial medical records also weigh against the Veteran's allegations of continuous back problems. A private clinical record dated in July 1992 reveals the Veteran sought treatment for complaints of neck pain radiating into his left arm. Significantly, he informed a clinician that he was in good health until May when he awoke with pain in his neck with associated numbness. Cervical disc disease was diagnosed. He did not complain of and was not found to have any back disorder at that time. A May 2006 private medical record pertaining to surgical treatment of the Veteran's back notes that the surgeon had performed a lumbar decompression on the Veteran in 1997 but includes no reference to any in-service back injury or history of back problems prior to 1997. The records from this time frame are totally devoid of any indication that the Veteran had had chronic back problems from the time of discharge until the dates of the records. While the Veteran has alleged that he sought treatment for back problems in the 1970's and 1980', he did not inform this clinician, or any clinician, of that fact prior to the time he submitted an application for compensation. The Board finds that if, in fact, the Veteran had had chronic back problems from discharge until 1992, he would have informed a health care provider of that when seeking treatment for the significant symptoms he had beginning in 1992. The Veteran did not submit his original application for compensation until June 2008. There is no indication in the record why the Veteran waited so long to file for compensation if, in fact, he had had a chronic back disability from the time of discharge until 1992 or later. The Board finds the delay in filing the claim weighs against a finding that the Veteran had chronic back problems from discharge. Based on the above, the Board finds that the Veteran's current allegations of a fall during active duty and subsequent chronic back pain are not credible. His current accounts are contradicted by his own prior actions as well as the contemporaneous objective evidence (or lack thereof). See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. It is the duty of the Board as the fact finder to determine the credibility of the testimony and other lay evidence. Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). The Board notes that not only may the Veteran's memory have dimmed with time, but self interest may play a role in the more recent statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]; cf. Pond v. West, 12 Vet. App. 341, 346 (1999). The Board further notes that there is no other corroborating evidence of the alleged service back injury, chronic back problems in service, or a continuation of back symptoms since service. Moreover, there is no competent evidence linking the Veteran's current back disability to service. Accordingly, the Board must conclude that service connection is not warranted for back disability. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for a back disability is denied. REMAND The Veteran is claiming entitlement to service connection for and hepatitis C. The Veteran has alleged that he was infected with the hepatitis C virus as a result of inoculations he received via air guns during active duty and that cirrhosis is due to the hepatitis C infection. The service treatment records document that the Veteran received vaccinations in April 1971, May 1971 and May 1972. The manner of the delivery of the injections was not reported. Associated with the claims files are medical records which document that the Veteran currently has been diagnosed with cirrhosis as a result of hepatitis C. The medical records reveal that the Veteran was initially diagnosed with hepatitis C almost 30 years after his discharge from service. The Veteran submitted a treatise on jet injectors for vaccinations. The treatise indicates that, in some cases, there was a possibility that viruses could be transmitted to another person being vaccinated with the same device. Hepatitis C was specifically noted as virus which is transmitted by blood. In support of his claim, the Veteran has submitted a February 2009 statement from K.G., M.D., who has been treating the Veteran since 2001. The physician wrote the Veteran was diagnosed with hepatitis C. The physician opined that it was more than likely that he obtained the disease in 1971 at Fort Polk, Louisiana. The reported rationale was that a number of the Veteran's colleges also developed hepatitis C. Hence, the physician found there appears to have been a cross contamination of a number of soldiers at that time. The physician observed the Veteran did not have any other obvious source of acquisition for the infection. Unfortunately, the Board finds that the February 2009 opinion is not adequately supported. The rationale provided by the physician was that a number of the Veteran's colleagues developed hepatitis C and therefore there was cross contamination. However, there is no evidence of record demonstrating that any of the men the Veteran served with have been diagnosed with hepatitis C. The Veteran's statements submitted in support of the claim are devoid of any evidence or reference demonstrating the Veteran had direct knowledge that one or more individuals he served with had or have hepatitis C. It is not apparent to the Board upon what basis the Veteran has determined that fellow servicemen were infected. There is no indication in the claims files that the Veteran ever discussed the health status of any of his fellow servicemen at any time during active duty or thereafter. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). The Board further notes the Veterans Benefits Administration (VBA) has indicated that the risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a healthcare worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA Fast Letter 98-110 (Nov. 30, 1998). Additionally, guidance has been published for adjudicating hepatitis C (HVC) claims in VBA Fast Letter 04-13 (June 29, 2004), which states in part: Population studies suggest HVC can be sexually transmitted. However, the chance for sexual transmission of HVC is well below comparable rates for HIV/AIDS or hepatitis B infection. . . . The hepatitis B virus is heartier and more readily transmitted than hepatitis C. While there is at least one case report of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of hepatitis C being transmitted by an air gun transmission. The source of infection is unknown in about 10 percent of acute HVC cases and in 30 percent of chronic HVC cases. These infections may have come from blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications. CONCLUSION: The large majority of HVC infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HVC with air gun injectors, it is biologically plausible. . . There was no test available to detect the presence of hepatitis C until 1989. See VBA Fast Letter 98-110. While the February 2009 medical opinion is not adequate, the evidence of record does trigger VA's duty to assist. The Board finds the Veteran should be contacted and requested to inform VA upon what basis he has determined that other members of his unit were infected with hepatitis C. Even if the Veteran does not respond to the request for additional evidence or if the information provided by the Veteran cannot be verified, the physician's February 2009 letter and the VBA fast letter suggests at least a possibility that air gun injections could result in hepatitis C infections. A VA examination should be conducted to determine the etiology of the Veteran's hepatitis C infection. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should request the Veteran to provide or identify any evidence which documents that people he served with when he received the air gun injections have become infected with the hepatitis C virus. 2. If appropriate, the RO or the AMC should undertake development to obtain any evidence identified but not provided by the Veteran. 3. Then, the claims file and any pertinent evidence in Virtual VA that is not contained in the claims files should be provided to a physician with sufficient expertise who should be requested to review the Veteran's pertinent history and provide an opinion, with supporting rationale, as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's hepatitis C is related to his military service, to include air gun injections. An examination of the Veteran should only be performed if deemed necessary by the physician providing the opinion. If the physician is unable to provide the required opinion, he or she should explain why. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs