Citation Nr: 1321004 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 05-41 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bordewyk, Alicia R. \ INTRODUCTION The Veteran served on active duty from December 1969 to February 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, denied entitlement to service connection for hepatitis C. The Board remanded this claim in January 2009, March 2011, and May 2012 for additional development. FINDING OF FACT Hepatitis C was not present during service and is not etiologically related to any incident of active duty service. CONCLUSION OF LAW The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in May 2004, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by a January 2008 letter. There was a timing deficiency in that the January 2008 letter was sent after the initial adjudication of the claim. Mayfield v. Nicholson, 499 F. 3d 1317 (Fed. Cir. 2007). Inasmuch as the claim is being denied, no effective date or rating is being set. The delayed notice on these elements, therefore, does not deprive the veteran of a meaningful opportunity to participate in the adjudication of the claim. See McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA treatment records, and private medical records. In a February 2013 statement, the Veteran reported that he has only sought VA treatment for hepatitis C. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Additionally, the Veteran was provided a proper VA examination in March 2013 in connection with this claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the February 2013 VA examination and medical opinion obtained in this case is more than adequate, as it is predicated on a full reading of the service treatment records as well as the medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. In fact, the examiner specifically discussed other possible factors to which his current hepatitis C is attributable. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the hepatitis C issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The issue on appeal was previously before the Board in January 2009, March 2011, and May 2012, when it was remanded for additional development. In accordance with the remand instructions, clinical records of hospital treatment during service and VA treatment records post-service were obtained and associated with the claims file; the March 2013 VA examination was conducted; the Veteran was provided with a hepatitis C questionnaire and list of hepatitis C risk factors in January 2013; and a supplemental statement of the case was issued in April 2013. Since the record reflects compliance with the January 2009, March 2011, and May 2012 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that he incurred hepatitis C during active service. Post-service treatment records document that hepatitis C was diagnosed in October 2003. Service treatment records are negative for findings of hepatitis while in service. Rather the Veteran contends that he may have had in-service exposures consisting of inoculations and surgery to repair a laceration to his left wrist. He has not reported that he received a blood transfusion during that surgery or that he knows that he was exposed to contaminated blood. VA treatment records indicate positive evidence of high-risk behavior after service. In March 2004, the Veteran tested positive for opiates, which had not been prescribed. That same month, he admitted to snorting cocaine a few times in the early 1970s, that he got a tattoo in the early 1970s, and that he may have had a blood transfusion during surgery for a severe arm laceration during service. The VA physician stated at that time that the estimated length of infection was about 30 years via intranasal drug use, possible transfusion, or tattoos. In November 2005, the Veteran admitted to a history of alcoholism, and in December 2005 he admitted to multiple sexual partners as a risk factor for hepatitis C. A VA examination was conducted in March 2013, where the examiner interviewed the Veteran, reviewed the claims file, and conducted research of medical literature. The Veteran stated that he did not know how he contracted hepatitis C. The examiner stated that a review of the service treatment records revealed appropriate surgical treatment of his left wrist laceration and did not reveal any evidence of an opportunity to have that cut contaminated by blood from another individual as the surgery did not require any transfusions. The Veteran denied in-service tattoos or body piercings as well as any high risk sexual behavior during service. He admitted to post-service high risk behavior in general, specifically for acute alcoholism. He denied tattoos or piercings after service. The examiner noted his history of illegal drug use as evidence of potentially high risk behavior. The examiner noted the Veteran's assertion of a possible connection between his multiple inoculations and hepatitis C but stated that there was no evidence in the medical literature of an increased incidence of hepatitis C in that regard. In conclusion, the examiner stated that it was not possible to determine at what point the hepatitis C infection may have occurred as there is no reliable method for determining onset of the disease. There was, however, no evidence of high risk behavior or incidents during service, including from blood transfusion or inoculations, and there was evidence of post-service high risk behavior. Therefore, the examiner concluded that it was less likely as not that the Veteran's hepatitis C had its onset during service. To the extent that the Veteran has stated that hepatitis C was possibly incurred during service as a result of multiple inoculations, the Board notes that as a lay person, he is not competent to render an opinion as to medical diagnosis or causation. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran is therefore, not competent to say that he incurred hepatitis C during service from the inoculations. There is no competent medical opinion that links such activity to the disease and the VA examiner specifically stated that the medical literature does not support such a connection. In addition, to the extent that the VA treatment records in 2004 and 2005 noted an estimated length of infection to be about 30 years, the Board notes that that still would have placed the occurrence of infection to be around 1974, or about two years after discharge. Moreover, the March 2013 VA examiner stated there was no reliable method for determining onset. The Board further notes that the first evidence of a tattoo is found in a February 1987 VA hospital admission record, where he had a tattoo on the left chest. The Veteran has denied getting a tattoo during service multiple times, including during the VA examination. Moreover, service treatment records are negative for any indication of a tattoo, despite the fact that he was treated for skin-related issues multiple times, including for hives of his torso and his whole body. Given the lack of medical evidence in support of the claim and the fact that the Veteran has denied exposure to in-service risk factors and admitted to exposure to post-service risk factors, the evidence is against a finding of a nexus between current hepatitis C and military service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). Because there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for hepatitis C is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs