Citation Nr: 1325428	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  09-32 511	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for Hepatitis C.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1975 to September 1984.

This matter initially came before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  In that decision, the RO denied entitlement to service connection for Hepatitis C.

The Veteran requested a Board hearing before a Veterans Law Judge and this matter was remanded in August 2010 in order to schedule the requested hearing.  As the Veteran has been incarcerated during the entire claim period, a hearing has not yet been held.  However, as this decision grants the full benefit sought, a hearing is not necessary for a fair adjudication of the claim.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran's current Hepatitis C had its onset in service.


CONCLUSION OF LAW

The criteria for service connection for Hepatitis C are met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012).


	REASONS AND BASES FOR FINDING AND CONCLUSION	

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
As the Board is granting the claim of service connection for Hepatitis C, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a) (2012).

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").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, an August 2007 VA examination includes a diagnosis of chronic Hepatitis C.  Thus, current hepatitis has been demonstrated.

The Veteran contends that his current Hepatitis C is related to various risk factors in service.  Specifically, he has reported that he was a mechanic in service and that he sustained many cuts and other injuries to his hands while working on equipment.  During field training exercises he rendered first aid to those who were injured and the cuts on his hands were exposed to the blood of fellow service members.  He was exposed to blood from the tools that he used as a mechanic in that they would become covered with blood when other service members injured themselves, he used gas masks that had not been sterilized, received a tattoo during service, and engaged in high risk sexual practices both during and after service.  Also, there are conflicting reports with respect to intravenous drug use.

Service treatment records indicate that in June 1976 the Veteran stepped on a rusty stake while playing football and that he sustained a left foot wound where the stake had penetrated the foot.  There was some redness in the area of the puncture and the Veteran was diagnosed as having a nail wound.  In October 1976 he cut his thumb and reported a loss of sensation to the medial aspect of the thumb.  Furthermore, he sustained a cut under the heel of the right foot in July 1980 after he stepped on a piece of glass at the beach.  The area of the cut was slightly swollen, but there was no discoloration.  The wound was cleaned and dressed.

There are conflicting medical opinions as to the etiology of the Veteran's current Hepatitis C.  The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994).

The examiner who conducted the August 2007 VA examination opined that the question of whether the Veteran's current Hepatitis C was related to service or permanently aggravated or caused by a foot injury in service and/or subsequent complaints of gastrointestinal symptoms could not be resolved without resorting to mere speculation.  He explained that a review of medical literature revealed at least 11 risk factors that had been identified for exposure to Hepatitis C, including blood transfusions prior to 1991, illicit injected drug use, unequivocal blood exposure, multiple sexual partners, hemodialysis, tattoos or repeated body piercings, intranasal cocaine use, unexplained liver disease, unexplained abnormal ALT value, intemperate alcohol use, and being a Vietnam era veteran.  The Veteran in this case denied having received any blood transfusions, having experienced any unequivocal blood exposure, or having undergone any hemodialysis.  Also, he denied any intravenous drug use, intranasal cocaine use, or intemperate alcohol use and he was not a Vietnam era veteran.  However, he did report having multiple sexual partners and having gotten a tattoo in service and there was evidence that he cut his foot on a piece of glass in service while walking on a beach.

Additionally, the Veteran's service treatment records included documentation of a "stomach virus," "viral syndrome," "gastroenteritis," "GI tract virus," and "stomach cramps."  Each of these entries could have been describing symptoms associated with a Hepatitis C infection.  On the other hand, more than one-half of acute Hepatitis C infections are asymptomatic with no symptoms of any kind.  The earliest documentation of a Hepatitis C infection in the Veteran's claims file was in 1997.  This was discovered via laboratory test results and the Veteran was not experiencing any symptoms at the time.

In March 2013, an independent medical opinion was obtained from the Chief of Infectious Diseases at the Brody School of Medicine at East Carolina University.  He opined that although it was impossible to say for certain whether the Veteran had Hepatitis C in service, it was likely ("more likely than not") that he had Hepatitis C at the time of a March 1984 evaluation in service.  This opinion was based upon the physician's 24 years of experience in clinical infectious diseases as well as a review of the Veteran's medical records.  The Veteran was not diagnosed as having Hepatitis C in service and the disease was called non-A or non-B hepatitis prior to 1989.  Although such diagnoses were not present in his record, there was evidence in his service treatment records which suggested that he did have such a diagnosis prior to his discharge from service in 1984.

The physician noted that the Veteran had reported various risk factors for a Hepatitis C viral infection.  For example, he had stated that he used intravenous drugs in the early 1980s and that he had received a tattoo on the back of his hand in service.  This tattoo was noted during several physical examinations in service, including a March 1984 examination.  Also, he indicated that numerous small lacerations on his hands had been exposed to blood when he rendered first aid to injured soldiers.

Furthermore, abnormal liver enzyme test results (including an elevated SGPT of 70 and an SGOT of 47) were noted during the March 1987 evaluation.  This enzyme pattern is very typical for Hepatitis C and is not typical for alcohol-induced hepatitis.  Although it was possible that the abnormal liver enzymes were secondary to the theophylline that the Veteran was receiving, it was more likely that the abnormalities were secondary to Hepatitis C infection.

The August 2007 opinion is adequate to the extent that it is accompanied by a specific rationale addressing why a definitive conclusion as to whether the Veteran's Hepatitis C was related to service could not be made.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  Nevertheless, the examiner stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim.  Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).

The March 2013 opinion, however, was based upon a review of the Veteran's medical records and reported history and is accompanied by a specific rationale that is not inconsistent with the evidence of record.  Thus, this opinion is adequate and entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

In sum, the preponderance of the evidence reflects that the Veteran has current Hepatitis C and that this disability had its onset in service.  In light of the March 2013 opinion and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for the currently diagnosed Hepatitis C have been met.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.


	

	ORDER

Entitlement to service connection for Hepatitis C is granted.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs