Citation Nr: 1324272 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-10 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for jungle rot of the feet. 2. Entitlement to service connection for hepatitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran had active service from September 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the RO in May 2013. A transcript of the hearing has been associated with the claims file. The issue of jungle rot of the feet 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 Veteran has not been diagnosed to have hepatitis B. 2. The Veteran's current hepatitis C disorder was not present in service or for many years after service. 3. The most probative evidence of record does not show that hepatitis is related to any in-service incident. CONCLUSION OF LAW Hepatitis was not incurred in or aggravated by active service. 38 U.S.C.A. 1101, 1110, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability rating. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, in a March 2006 letter, issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The Veteran was not advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations in the March 2006 letter. However, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for service connection, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. VA also has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and VA treatment records have been obtained. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his claim regarding hepatitis. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, this element establishes a low threshold and requires only that the evidence indicate that there may be a nexus between a current disability or symptoms and the Veteran's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claimed hepatitis B disorder, the Board finds that there is currently no diagnosis of record for this disability. Therefore, a VA examination is not needed. In addition, the Board finds that a VA examination is not necessary for a finding regarding hepatitis C, which has been diagnosed, because as explained more fully below, there is no indication it is related to service. In addition, the Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim for service connection. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Additionally, the Veteran volunteered his treatment history and symptoms since service. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that the Veteran is not prejudiced by a decision being rendered at this time and no further action pursuant to Bryant is necessary. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection In seeking VA disability compensation, a person generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). III. Analysis The Veteran is seeking service connection for hepatitis. He evidently believes he has hepatitis B, and asserts that he incurred it in service due to exposure to unsanitary living conditions while in Vietnam. The Veteran's service treatment records do not reveal treatment for hepatitis or any manifestations of hepatitis. Post-service VA outpatient records beginning in 2005, indicate findings of hepatitis C, however, VA treatment records do not reflect that a nexus or relationship was considered to exist with the Veteran's active duty. At the May 2013 Travel Board hearing, the Veteran indicated that his hepatitis disorder was due to the filth and waste in which he had to live in, while serving in Vietnam. He noted that there was no proper sanitary way to take care of his personal hygiene and eating utensils. The Veterans Benefit Administration (VBA) has published guidance for adjudicating hepatitis C claims. A VBA Fast Letter issued in June 2004 identified "key points" that included the fact that hepatitis C is spread primarily by contact with blood and blood products with the highest prevalence of hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another "key point" was the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. The fast letter indicates in its conclusion section that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. With regards to hepatitis B, the threshold criteria for establishing service connection for a claimed condition is the presence of a current diagnosis. In the instant case, the evidence of record fails to reflect that the Veteran has been clinically assessed with a current diagnosis of hepatitis B. In the absence of proof of a present disability, there can be no valid claim for service connection. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, there is no basis for awarding benefits for hepatitis B. Regarding the current hepatitis C diagnosis, the evidence of record does not reveal complaints or treatment for hepatitis during service or upon separation from service. The earliest post-service medical evidence of the claimed condition is dated no earlier than 2005. Further, there is no competent evidence of record linking the claimed condition with the Veteran's service. The Veteran indicated on his separation Report of Medical Examination that he did not have a drug or narcotic habit while in service and service examination reports do not indicate the presence of tattoos while in service. The Veteran has not articulated exposure to any other recognized risk factors of hepatitis C during service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causes for hepatitis. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). While competent to discuss his living conditions in service, the Board finds that the diagnosis and etiology of the Veteran's claimed disorder are complex medical questions and beyond the competency of a layperson. Thus, the Veteran's lay statements do not constitute competent evidence and lack probative value. The evidentiary record does not contain evidence that the Veteran's currently diagnosed hepatitis C disorder either manifested in service or for years following service. In addition, the evidence does not show that the Veteran's hepatitis C disorder is related to his service. There is no competent lay evidence, post-service private medical records or VA outpatient treatment evidence to support the Veteran's claim to trigger the need of a VA examination. Thus, entitlement to service connection for hepatitis is not warranted. In reaching this decision, the Board also notes that the Veteran apparently thought in service exposure to herbicides and/or asbestos could be responsible for his hepatitis. He offered no medical evidence to support these theories of entitlement, and he is not shown to be competent to express any probative opinion in this regard. Likewise, hepatitis is not among the disease for which service connection is presumed for those exposed to herbicides, as the Veteran was here. See 38 C.F.R. §§ 3.307, 3.309 (e). Thus, these contentions do not support the award of benefits the Veteran seeks. The Board has considered the doctrine of reasonable doubt in this case, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hepatitis is denied. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim. At the May 2013 Travel Board hearing, the Veteran indicated that during his service in Vietnam, his feet were constantly wet because he had to walk during monsoon season. He stated he developed his current disability at that time, but did not receive treatment for his condition during service, and has self-medicated by using foot powder since service. The Veteran has not been provided a VA examination with respect to his current claim. One should be provided. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all VA and private medical treatment providers that may have records relevant to his claim that are not already of record. After securing any necessary authorization obtain such records. All development efforts must be in writing and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of and/or who were contemporaneously informed of his in-service and/or post-service skin symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination. The claims file should be made available and reviewed by the examiner. Any indicated tests should be accomplished. The examiner should opine as to whether it is at least as likely as not that any diagnosed skin disorder had its onset during service or is otherwise causally related to service, to specifically include the Veteran's reported foot condition during service, and his claimed chronic manifestation since service. A complete rationale should be provided for any opinion expressed, which should address whether any current disability and/or findings are consistent with a disability that has been present since 1970. 4. Then readjudicate the appeal. If the benefit is not granted, a supplemental statement of the case should be furnished to the Veteran and his representative. The case should then be returned to the Board, if otherwise in order. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs