Citation Nr: 1324040 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-29 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. WITNESSES AT HEARING ON APPEAL Veteran and his mother ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from December 1974 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2011, the Veteran and his mother appeared and testified at a hearing before a Decision Review Officer at the RO. A copy of the transcript of this hearing has been associated with the claims file. The Board notes that, in August 2011, it remanded the Veteran's claim in order to provide him with a hearing before a member of the Board at the RO as he requested in his May 2011 VA Form 9. In May 2012, the Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The issue of entitlement to an initial compensable disability rating for service-connected bilateral hearing loss 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. FINDINGS OF FACT 1. The probative and persuasive evidence of record establishes that the Veteran's current hepatitis C is related to own willful misconduct in using illicit drugs. 2. Resolving reasonable doubt in the Veteran's favor, he has tinnitus that is related to noise exposure during his military service. CONCLUSIONS OF LAW 1. Service connection for hepatitis C is barred as a matter of law. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304 (2012). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 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 a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, notice was provided to the Veteran in June 2008, prior to the initial AOJ decision on his claims. The Board finds that the notice provided fully complies with VA's duty to notify. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the Veteran has submitted information and evidence in connection with his claim demonstrating his actual knowledge of what is needed to support his claims. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The Veteran was afforded VA examinations on his claims in December 2008 and June 2010. The Board also notes that a VHA expert medical opinions were obtained in March and May of 2013 relating to the Veteran's claim for service connection for hepatitis C. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker at 1334. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. at 1335-36. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. at 1336-39. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay 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). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include 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 means 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Hepatitis C The Veteran is seeking service connection for hepatitis C. In a statement received in June 2008, the Veteran reported having the following risk factors: intranasal drug use (crystal methamphetamine) from 1975 to 1976 in Pusan, Korea; and high risk sexual activity with multiple sex partners, while stationed in Korea from 1975 to 1976. Current VA treatment records from the VA Outpatient Clinic in Fort Myers, Florida, show that the Veteran was diagnosed to have hepatitis C in March 2006 via a positive laboratory blood test. The diagnosis of hepatitis C was confirmed in January 2008 by a liver biopsy. Consequently, the Board finds that the requirement of a current disability is met. The Board notes that the Veteran's service treatment records do not show any diagnosis of hepatitis C or findings of jaundice and dark colored urine. The Board acknowledges that they do demonstrate treatment on June 28, 1975 for nausea, vomiting, fever and diarrhea assessed as flu syndrome, rule out amoebic dysentery, rule out salmonellosis, questionable food poisoning; on July 1, 1975 for follow up with assessment being acute gastroenteritis; on October 20, 1975, for complaints of diarrhea and stomach pain; and on March 25, 1976, for complaints of abdominal cramps and vomiting with assessment of flu syndrome. Although the Veteran points to these records in support of his claim, the Board finds that they are not an indication of a hepatitis C infection as pathologically, hepatitis C does not present in such manner, and clearly the medical professionals treating him at that time did not associate such illnesses with any type of hepatitis infection. (See June 2010 VA examination report.) Thus the service medical records are silent for any diagnosis of hepatitis C in service. Separation examination report from November 1976 fails to show any complaints or diagnosis of hepatitis C. The Veteran was not diagnosed to have hepatitis C until March 2006, almost 30 years after his separation from service. Consequently, the Board finds that the evidence fails to demonstrate the chronic disability of hepatitis C had its onset in service. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). Service connection may also be warranted if the competent, credible and probative evidence of record establishes that the disability was incurred in service. 38 C.F.R. § 3.303(a). The Board notes that hepatitis C is not a chronic disease listed in 38 C.F.R. § 3.309(a). Consequently, the provisions of § 3.303(b) providing for service connection based upon chronicity in service or a continuity of symptomatology since service are not for application in the present case. Walker, supra. Thus, in order for service connection to be warranted, the competent, credible and probative evidence of record must establish that the Veteran's hepatitis C is the result of an injury, disability or event incurred in service pursuant to the provisions in § 3.303(a). At the time he was initially diagnosed to have hepatitis C in March 2006, the Veteran reported risks factors of being stationed in Korea as an MP (military policeman) and having unprotected sex and using nasal cocaine. In January 2008, the Veteran underwent a consultation with VA Infectious Disease at which he reported that, while in Korea, he developed flu like symptoms, jaundice, and dark colored urine (which statement, except for him developing flu like symptoms, is not supported by the service treatment records). With regard to risk factors for hepatitis C, he denied intravenous drug use, tattoos and exposure to blood products but admitted to intranasal cocaine use and multiple heterosexual partners (about 100 partners) and multiple one night stands. VA treatment records from the VA Medical Center in Salisbury, North Carolina, show the Veteran underwent a consultation with Infectious Disease for possible treatment of his hepatitis C in April 2009. The Veteran reported that he used to drink but had not for three years. He admitted to currently using marijuana (last use being a few days in the previous month). He reported he snorted cocaine from 1980 to 1988. The assessment was chronic hepatitis C infection: HCV genotype 1 disease. The only risk factor set forth by the physician was snorting cocaine through a straw. With regard to the Veteran's substance abuse, the Board notes there are mental health records that show the Veteran's various reports of when and how long he used various substances. A May 19, 2009, VA Psychology Telephone Encounter note shows the Veteran reported struggling with depressive symptoms in conjunction with his worsening health. During this telephone call, he reported quitting drinking/drugs three years ago. He stated he was addicted to cocaine, but stopped using three to four years ago. He reported daily use at the time, with a fifth of rum and a case of beer ingested daily, as well as similarly heavy use of cocaine. He denied any current use. In contrast, at a June 2009 Mental Health consultation, the Veteran reported that he used to drink very heavily and use crack cocaine daily until three years ago when he was told he had hepatitis C. He reported, however, still using marijuana daily and drinking beer. The examining psychiatrist further noted that, per the history of present illness, the Veteran reported that he started drinking alcohol at age 13, and he had escalated to daily use at age 17. He also reported that he started cocaine while in the Army at age 18, and that he used it daily until three years ago (i.e., 2006). He further reported having experimented with hallucinogens in the service and using marijuana daily for many years and continuing to use the same. In addition, as part of his application for Social Security disability benefits, the Veteran underwent a psychiatric evaluation on June 13, 2009. At this evaluation, the Veteran reported that he does not know how he got the hepatitis C. He did indicate, however, that he was a heavy cocaine user and that he snorted the cocaine for the most part and his physicians have told him that he may have gotten it from that. He reported that he both drank and did cocaine on a daily basis. He did not report using marijuana as he did to the VA psychiatrist. He related that he stopped using cocaine in 2006 and discontinued drinking for the most part about three years ago as well although he continued to drink one beer about once a week or once every other week. The Veteran underwent VA examination for his hepatitis C in June 2010. At that time, he reported the following risk factors: having multiple sexual partners in Korea estimating 100 different ones and using "crystal met (sic) cocaine" in Korea and snorting cocaine after separation from service until the 1980s. He also, for the first time, related having his wisdom teeth extracted in a MASH hospital in Korea. He denied blood transfusions, however, so the examiner stated this was not considered a risk factor. In responding to the request for a nexus opinion, the examiner stated that he could not resolve the question of whether the Veteran's hepatitis C is due to or a result of multiple risk factors in military service without resorting to mere speculation. His rationale for this was that the Veteran had risk factors for hepatitis C while in military service and after service (i.e., snorting cocaine until the 1980s) and, therefore, as to when he contracted hepatitis C is speculative. It could have been in the military service or after. Therefore, this requires speculative opinion and cannot be resolved by this examiner. Regarding a flulike illness in Korea, the examiner stated that there is no evidence that this was a hepatitis illness. The examiner noted that hepatitis C does not start with a recognizable clinical illness so it is almost impossible to pinpoint a date of origin. The Veteran appeared and testified before the undersigned Veterans Law Judge at a hearing held in May 2012. At that time, the Veteran claimed his hepatitis C was the possible result of two risk factors. The first, already considered by the VA examiner, was that he contracted hepatitis C as the result of having his wisdom teeth extracted in a MASH hospital while in Korea. He related that they had to break his teeth out. He claimed that the infection would have been the result of the use of unclean instruments. He did not necessarily claim it was because the procedure was done in a MASH but that, at that time, they did not have anything to properly clean their instruments to kill hepatitis C because they did not know about it. The Board notes that the Veteran's service treatment records indicate that teeth numbered 1 and 16 (wisdom teeth) were extracted in August 1975 while he was in Korea. The service dental treatment records, however, do not indicate that there were any complications to include blood loss. They do indicate, however, that no sutures were used or prescriptions given. His second risk factor, which he raised for the first time, was that his hepatitis C is due to his being inoculated by the use of air-powered injector guns in 1975 during basic training at Fort Jackson. He related that they just stood in a line and each person was inoculated. He stated that they were told not to jerk or move because the injector gun would "slice you open." He related that he remembers that the guy in front of him was scared to death of the shots and jerked when he was given the shot and "blood went everywhere." The Veteran reported that he was next in line and they did not change the needle or clean it before they gave him the next shot. In support of this claim, the Veteran cited to multiple Board decisions that granted service connection for hepatitis C based upon medical opinions provided in those cases. He also referenced VA Fast Letter 04-13, which discusses the relationship between immunization with jet injectors and hepatitis C infection. He claimed that this Fast Letter stands for the proposition that, despite the lack of any scientific evidence to document the transmission of hepatitis C with air gun injectors, it is "biologically plausible." As there was no medical opinion of record as the VA examiner's opinion did not resolve the issue and the Veteran has raised the possibility of other risk factors not previously considered, the Board sought a VHA expert medical opinion in February 2013. In an opinion dated in March 2013, the VHA medical expert stated that it is his considerable medical opinion, as a 45-year military/federal healthcare professional, that it is much greater that 50 percent probability that the Veteran acquired his hepatitis C by snorting cocaine and/or multiple sexual partners likely with acute hepatitis C either during his deployment in Korea in 1975/1976 or in the 30 years after that time that he exhibited the same behaviors. He stated that he cannot say that it was in Korea, although experience and literature would suggest that young men in their first deployment in a developing world scenario where they live on the economy with ready access to frequent sexual partners and mind-altering drugs, such as cocaine, would be the highest probability transmission/unit time. Certainly the Veteran continued snorting cocaine and having unprotected sexual partners after that time probably until diagnosis in 2006 or at least until 1999 when he began to have skeletal degenerative/disability issues, and he readily stated this on two Infectious Disease, at least one Primary Care, and one Psychiatry interviews as is thoroughly documented in the records. He thought it is "much, much, much less" than a 50 percent probability that the air-gun injection for military immunization in Basic Combat Training had any significant part in the risk of acquisition, just as it is even less probable that the Dental Clinic extractions in Korea had any part in the risk of acquisition. In discussing the reasoning behind his opinion, the VHA medical expert noted that he thoroughly reviewed the Veteran's records including VA medical records and his military treatment records. He noted that, as the Veteran verified, he was treated in the summer of 1975 for what was thought to be gastroenteritis at that time. He readily discussed with the providers at the time that he lived on the economy, drank tap water, had a lot of unprotected sex and snorted cocaine. His illness was impressive enough that they did blood cultures. He had a positive gram stain for gram-negative intracellular diplococcic from his urethra, and later in that tour he had a negative RPR and had pyuria on urinalyses but no mention of jaundice nor elevated urobilinogen in his urinalyses. He was treated later in the same tour for venereal warts. He testified several times that he snorted cocaine from 1975 to 1988, and he had more than 100 partners during his tour in Korea. He was seen by VA Infectious Disease in April 2009. They documented a liver biopsy in 2008 which showed mild periportal inflammation, some focal lobular necrosis, minimal portal fibrosis and a history of immunization against hepatitis B. He was graded at 2, stage 1, and was not thought to need treatment. The VHA medical expert stated that this is totally consistent with all of the natural history studies that only two percent of chronic hepatitis C patients have cirrhosis at 33 or 23 years duration even though he had greater than 10,000,000/mcL of viral particles (load) on several occasions in 2006 to 2010. The Veteran was seen again in a secondary Infectious Disease consultation in 2010 after his first denials and then began to talk about the dental extractions and the injector guns and referenced the so-called "Fast Letter." The VHA medical expert stated that he had never believed that this Fast Letter was more than speculation based on all the early needle stick transmission studies: the most striking ones by Seef et al in Annals of Internal Medicine 1978; 88: 285-93, and later by Henderson et al in AIM 15 Nov. 90, Vol. 11, 740-6, then other studies summarized in Chapter 154 by Ray & Thomas in Mandell/Douglas/Bennett's PRINCIPLES and PRACTICE OF INFECTIONS DISEASE 7th Ed 2010: that hepatitis C is transmitted 1 or 2 percent of the time from deep needle sticks that do not back bleed whereas HIV is only 0.3 percent and yet hepatitis B is 30 percent. It is difficult to prove these numbers, but they have been generally borne out by many studies. The VHA medical expert stated that this leads him to believe that compared to sexual transmission and snorting cocaine. He further stated that his own experience as a field medical assistant in the Republic of Vietnam in 1969/1970 suggests that many experimented with needle drugs and would own up to sexual behavior and even snorting cocaine but not the needle component of risk spectrum. Many epidemiology studies that have been carried out and published since that time suggest that the culture of use of drugs and the lack of substance treatment documented in this Veteran's record are associated with community-acquired hepatitis C. The VHA medical expert further stated that most instructive is a NEJM article from August 19, 1999, page 556, where they looked with rather sophisticated population samples in North America at the prevalence of hepatitis C infection. They discovered that it did not seem to be associated with employment in health-related occupation which would make one think that involvement with dental instruments or a vaccine gun would make it more probable, and that the major predictor was use of cocaine and that the prevalence increased greatly with the number of times each drug was used. To give specific examples from Table 3, which is on page 559, people who had more than 10 times lifetime cocaine use, had a prevalence that was significant at the P<0.05 level, just as those did with lifetime sexual partners greater than 50, both of which fit this Veteran's exposure in Pusan, Korea, and then for approximately 20 years after that time. Trying to find a better focus to understand actual transmission by surgical instruments, the VHA medical expert stated that he has personal knowledge that because of hepatitis B in the later 1960s, there was great emphasis, even in dental clinics in the deployed areas, of exclusive use of disposable needles, steam sterilization even in the field, and widespread application of iodine-containing disinfectants which would neutralize hepatitis C. Of note, in the 29 February 1996 NEJM, page 555, there is a case documenting transmission of a cardiothoracic surgeon with hepatitis C to his patients. The only ones that seemed to get the hepatitis C were the ones where he tore his skin 20 percent of the time in tying metal sutures across the sternum that then these contaminated sutures were incorporated subcutaneously with the closure of the sternal wound. This echoes previous transmission when the patients were put on cardiac bypass by another surgeon and he actually dropped his blood into their wounds. A similar validation is from a NEJM article from 21 December 2000, on page 1851, documenting an anesthesia assistant in West Germany who transmitted hepatitis C to six patients that he intubated or started arterial/venous lines on when he had weeping dermatitis on his hand and an acute hepatitis C infection. They doubted that he was diverting multi-use vials of narcotics, although they say that they had questioned and tested him frequently to make sure that was not the case. In summary, the VHA medical expert stated that he strongly believed that there is a much greater than 50 percent probability that the Veteran got his infection from cocaine snorting or frequent sexual partners or un-admitted intravenous needle use, which is often a concomitant in this epidemiologic setting. He thought that it is vanishingly unlikely that military dental providers or vaccine providers played a role in this transmission. However, pin pointing his time of transmission is impossible. It could have been in the service or any time in the 10 years after the service as the behaviors continued. In April 2013, the Board asked the VHA medical expert for clarification of his medical opinion as it did not allow the Board to distinguish between the risk factors that are considered to be misconduct (such as illicit drug use) and factors which under the applicable law are not consider to be misconduct (including having multiple sexual partners). In addition, it was noted that additional medical evidence was received subsequent to the prior opinion. In May 2013, the Board received an addendum from the VHA medical expert (dated April 25, 2013) in which he stated that the likelihood that this Veteran got his hepatitis C from risky sexual activity with multiple partners in Korea is about four percent. The likelihood that he got his hepatitis C from exposure to unclean, unsterilized instruments during the extraction of wisdom teeth at a MASH in Korea is about one percent. The likelihood that he got the hepatitis C from the air gun inoculation in 1975 at Fort Jackson is about one percent. The likelihood that the Veteran's hepatitis C is attributable to illicit drug use is 95 percent. He stated that these assertions are based on his experience with sexually transmitted blood and body fluid illnesses for 45 years as a Department of Defense and other governments health care professional and researcher. He noted that he has provided many references that bear on the probabilities in the previous statement. Meanwhile, while the Board was getting the VHA medical expert opinions, the Veteran was obtaining opinions from a private physician. He initially submitted a statement from this private physician in March 2013. This private physician indicated he had reviewed the Veteran's service medical records and noted that he served in the army from 1974 to 1980. As expected, there were no blood tests for liver disease in the Veteran's record. There was no test available for hepatitis C before 1989. He did, however, note that the Veteran's record documents many vaccinations. He stated that air gun vaccinations have been shown to spread viral hepatitis and many veterans were infected this way (exhibit one). He stated that hundreds of people stood in line and were inoculated with the same air gun. Once contaminated, the injector infected many others. He further stated that six percent of military veterans are infected with the hepatitis C virus. Some of them have a history of injection drug use, but many have only military service including air gun vaccination as a risk factor. He opined that the Veteran's hepatitis C virus is service-connected. The Board notes that exhibit one is an abstract of an article from the Archives of Internal Medicine dated September 1990 entitled "An outbreak of hepatitis B associated with jet injections in a weight reduction clinic." The Veteran submitted a second statement from this same private physician in May 2013 in which the physician noted reviewing the Veteran's service medical records and that they indicate he received vaccination during his military service. He again stated air gun vaccinations have been proven to transmit viral hepatitis and submitted the same article abstract previously submitted. He then opined that it is very likely that the Veteran was infected with hepatitis C virus this way or by razors reused by military barbers. Finally, the Veteran submitted a statement in June 2013 in response to the VHA medical expert's statements. In this statement, he stated that he had never done any drugs before going into the army and he never did cocaine in Korea or while he was in service. He further stated he was never an intravenous drug user. He admitted to trying cocaine in college but that he never became a user. He also admitted to using "speed" in Korea when he was on a long mission as it was used by many of the soldiers in the field because they did not have access to coffee and it was essential to remain alert and awake for long periods of time. He stated this was either put in water or swallowed. In addition, he submitted his college transcript and an article about his work as evidence that he was a productive citizen after service, not a drug user. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. After considering the evidence of record, the Board finds that the overwhelming evidence supports a finding that the most likely etiology of the Veteran's hepatitis C is his intranasal cocaine use. In making this determination, the Board does not find the private physician's medical opinions to be probative for numerous reasons. First and foremost, the private physician relies upon an abstract of an article about an outbreak of hepatitis B from jet injections without explaining how that relates to the Veteran's hepatitis C. The Board notes that hepatitis B is clearly a disease distinct from hepatitis C with its own distinctive disease process and with different means of being transmitted. The Board takes judicial notice that hepatitis B is an acute infectious process that rarely becomes chronic while hepatitis C is always chronic. The private physician makes no effort to explain how the transmission of hepatitis B from jet injection would be the same for transmission of hepatitis C by the same means. Furthermore, although the private physician reviewed the Veteran's service medical records, he makes no indication that he reviewed the Veteran's treatment records relating to his hepatitis C. He, therefore, clearly did not take into consideration any of the Veteran's other risk factors as are distinctly and consistently reported in the evidence in the claims file, which show the Veteran's multiple reports of intranasal cocaine use and multiple sexual partners. In addition, although he commented in the March 2013 statement on the fact that some military veterans who have hepatitis C have a history of injection drug use, he clearly failed to take into consideration the Veteran's own intranasal cocaine use and that it is also a well-known risk factor for contracting hepatitis C. Finally, as for his opinion in the May 2013 statement that razors reused by military barbers is likely how the Veteran was infected with hepatitis C, the Board notes first that the Veteran has never claimed such a risk factor. He has presented no evidence to support this risk factor. Furthermore, the private physician gives absolutely no rationale for this opinion and cites to no clinical or scientific evidence in support of this opinion. The Board notes that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A medical examination report is entitled to no weight in a service-connection determination when it merely ventures a conclusion without appropriate explanatory reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Furthermore, a medical opinion based on speculation, without supporting data or other rationale, does not provide the required degree of medical certainty to constitute medical nexus evidence. Bloom v. West, 5 Vet. App. 104, 145 (1999). Consequently, the Board finds that the private physician's medical opinions are afforded no probative weight as they are not based upon a fully articulated sound reasoning. Moreover, they are based upon speculation (at least in part) and are without supporting data or rationale. In contrast, the VHA medical expert cited his 45 years of professional experience (much of it in dealing with infectious diseases as set forth in his curriculum vitae) as well as multiple medical studies and articles in support of his medical opinion. He supported his medical opinion with a very thorough discussion of the evidence in the claims file and the relied upon articles, as well as his professional experience. The Board finds, therefore, that the VHA medical expert's opinions are highly probative and persuasive as to the etiology of the Veteran's hepatitis C and the likelihood that each risk factor claimed by the Veteran was the cause of his hepatitis C. Furthermore, the Board does not find the Veteran's June 2013 statement that he never did drugs to be credible given the overwhelming evidence of record, including statements made during Infectious Disease consultations and psychiatric evaluations, as well as made in statements directly to VA in support of his claim, that he used intranasal cocaine while he was in service and for many years thereafter (although the reports of when he stopped are a bit inconsistent, some saying in the late 1980s but others that it was in 2006 when he was diagnosed to have hepatitis C). See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). Consequently, the Board finds that the preponderance of the evidence is in favor of finding that the most likely etiology of the Veteran's current hepatitis C is his prior intranasal cocaine use. Although the Veteran has reported that the onset of such use was in service, service connection for any disease or injury resulting from illicit drug use is prohibited by law as it is considered to be willful misconduct and, therefore, not to have been in the line of duty. See 38 C.F.R. § 3.301. The Board, therefore, has no choice but to deny the Veteran's claim for service connection for hepatitis C as it is the result of his own willful misconduct and, thus, service connection is barred as a matter of law. Tinnitus In the current appeal, the Veteran contends that he has tinnitus as a result of exposure to excessive noise in service. Specifically, he states that he was exposed to acoustic trauma while working as a military policeman in the military and being exposed to loud noise without hearing protection at rifle and pistol ranges. He has also stated that he did a tour of duty in which he had to guard bombs aboard trains and that the loud noise of the locomotives contributed to his tinnitus. First, the Board must consider whether the Veteran was exposed to acoustic trauma during service. In this regard, the Board notes that the RO has already conceded acoustic trauma in service when it granted service connection for bilateral hearing loss in the rating decision issued in January 2009. Consequently, the Board will also conceded exposure to acoustic trauma in service. In addition, the Board finds that the Veteran currently has tinnitus. The Board acknowledges that the Veteran is competent to state the he has had ringing in his ears and the onset of this because ringing in the ears is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) citing Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue does not require medical expertise, lay evidence may suffice by itself); Falzone v. Brown, 8 Vet. App. 398, 406 (1995); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness). Tinnitus is, by definition 'a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type. See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Because tinnitus is "subjective," its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has reported in statements in support of his claim that he has tinnitus that he relates to noise exposure in service. At the hearing in May 2012, the Veteran testified that he first noticed the tinnitus shortly after service, and that it started out pretty weak but has gotten louder over the years to where it is now very annoying all the time. At the December 2008 VA audiology examination, however, the Veteran denied having tinnitus. In contrast, VA Audiology Consult notes from June 2008 and November 2011 show the Veteran reported having tinnitus. Given the Veteran's statements to VA in support of his claim that he has tinnitus along with those seen in the VA treatment records contrasted to the report of no tinnitus at the December 2008 VA examination, the Board finds that the evidence is at least in equipment as to whether the Veteran has tinnitus. Resolving reasonable doubt in the Veteran's favor, therefore, the Board finds the Veteran has tinnitus and a current disability is present. Consequently, the remaining question in this case is whether the Veteran's current tinnitus is related to his military acoustic trauma. The December 2008 VA examiner did not provide an opinion as to tinnitus because the Veteran denied having tinnitus at the examination. The examiner did, however, find that the Veteran's reported in-service noise exposure seemed substantial and valid. The examiner opined, therefore, that the Veteran's bilateral hearing loss is related to such in-service noise exposure. As previously mentioned, at the Board hearing, the Veteran testified that the onset of his tinnitus was shortly after service and has continued since then getting louder and more aggravating over the years. The June 2008 VA Audiology Consultation note indicates the Veteran reported having tinnitus in both years that has been constant since 1977. In contrast, the November 2011 VA Audiology Consultation note indicates the Veteran reported his tinnitus is intermittent but did not note the onset of it. The Veteran's lay statements are competent evidence as to having an onset of tinnitus shortly after service and a continuity of symptoms since service. The Board cannot find any reason in the record to conclude that the Veteran's statements are not credible. Since the Veteran reported an onset of his tinnitus to be shortly after service, silence in the service treatment records for reports of or treatment for tinnitus is expected and not negative evidence against the claim. Finally, although the Veteran's statements as to onset and continuity seen in the VA treatment records are inconsistent with his report at the VA examination, the Board does not find these inconsistencies to be unreasonable and, therefore, detrimental to his credibility. Consequently, the Board finds that it cannot give more probative weight to the negative evidence versus the Veteran's statement as to an onset shortly after service and a continuity of symptoms since service. Moreover, the Board notes that the RO granted the Veteran service connection for bilateral hearing loss based on the same claim of noise exposure in the January 2009 rating decision. The fact that the Veteran has been granted compensation for a service-related hearing loss adds to the credibility of his contention that his tinnitus is related to service because 'an associated hearing loss is usually present' with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. The Board concludes, therefore, that the evidence as to whether the Veteran's tinnitus is related to his military noise exposure is in equipoise. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, account for evidence that it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Resolving this reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. Consequently, the Veteran's appeal is granted. ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for tinnitus is granted. REMAND At his hearing before the Board held in May 2012, the Veteran testified that his bilateral hearing loss had been getting worse over the last several years. The Board notes that last VA audiology examination was conducted in December 2008. As the Veteran has presented evidence of a worsening of his bilateral hearing loss since he was last examined, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his psychiatric disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. The Board further notes that the Veteran gets treatment for his bilateral hearing loss at the VA Medical Center in Salisbury, North Carolina. The last treatment record in the claims file is from November 2011. As there may be additional treatment relevant to his claim since that time, any such records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file all VA treatment records from the VA Medical Center in Salisbury, North Carolina, for treatment for his bilateral hearing loss since November 2011. 2. After any additional available evidence has been obtained, schedule the Veteran for VA audiology examination. The claims file must be provided to and reviewed by the examiner, who must indicate in his/her report that said review has been accomplished. The examination should be conducted by a VA audiologist for the purpose of ascertaining the current severity of the Veteran's service-connected bilateral hearing loss. The examiner should perform a complete audiological evaluation. The examiner should elicit information as to the effect the Veteran's hearing loss has on his activities of daily living, including work and social activities. If speech discrimination testing is inappropriate, the examiner should indicate the reason for which such was not performed. 3. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative, if any. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs