Citation Nr: 1334361 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 05-29 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for anemia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 RO rating decision that, in pertinent part, denied service connection for hepatitis C and anemia. In January 2008, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. In May 2008, April 2010, May 2011, and August 2012, the Board remanded these issues for further development. This matter is again before the Board for adjudication. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran's hepatitis C has not been shown to be causally or etiologically related to the Veteran's military service. 2. The Veteran's anemia has not been shown to be causally or etiologically related to the Veteran's military service. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Anemia was not incurred in or as a result of service, may not be so presumed, and is not proximately due to or the result of a service-connected disease or disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the issues decided herein, the record reflects that the Veteran was provided all required notice in letters mailed in September 2004, March 2006 and April 2010. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims, most recently by way of the January 2013 supplemental statement of the case. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of these claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds VA has complied with its duty to assist the Veteran in the development of his claims. In this regard, the Board notes that service treatment records (STRs), service personnel records, and post-service treatment records were obtained. The Veteran's Social Security Administration (SSA) records were requested; however, in September 2012, SSA notified VA that the Veteran's records had been destroyed. As such, any further efforts to obtain these records would be futile. A VA examination was obtained in October 2008, followed by addendum opinions in February 2009, May 2010, and August 2011. 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). The October 2008 VA examiner deferred rendering an opinion, because the Veteran's service treatment records were not made available. An addendum was obtained in February 2009, in which the examiner again reported being unable to review the Veteran's service treatment records. The Board remanded the matter, finding the opinions inadequate, noting that the service treatment records were, in fact, in the claims file. An addendum was again obtained in May 2010. As noted by the Board in May 2011, this examiner's opinion was unclear, it failed to clarify why an opinion as to cause of the Veteran's hepatitis C could not be made without resorting to speculation, and it failed to consider the Veteran's anemia. The Veteran was reexamined in August 2011. The Board finds that the August 2011 VA examination and opinion is adequate, as it is predicated on a reading of the service and post-service medical records in the Veteran's claims file and takes into consideration the Veteran's lay statements regarding his medical history. There is also a complete rationale for the opinion stated, relying on and citing to the records reviewed. Thus, there is now adequate medical evidence of record to make a determination in this case. The transcript of the Veteran's January 2008 Travel Board hearing as well as other lay statements provided by the Veteran and his representative are of record and were considered when adjudicating these claims. During the hearing, the undersigned VLJ directed follow up questions to the Veteran pertaining to the elements that were lacking to substantiate the Veteran's claims for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that the undersigned VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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 for 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 (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) (footnote omitted). 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) . Service connection for certain chronic diseases, such as anemia, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "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. 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." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310 in 2006, which sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is rated. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The Veteran has perfected appeals as to whether he is entitled to service connection for hepatitis C and anemia. The Veteran contends that his military occupational specialty (MOS) of medical specialist exposed him to things such as blood transfusions, carrying blood, and assisting in treatment of the wounded. He believes this caused his current hepatitis C and that his hepatitis C caused his anemia. For these reasons, he believes service connection is warranted for both. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the preponderance of the evidence is against the claims and, as such, they must be denied. 38 U.S.C.A. § 5107(b); Alemany, 9 Vet. App. 518. The Veteran's service treatment records are silent for any diagnosis or treatment of Hepatitis C or anemia. The service records do, however, confirm that the Veteran was a medical specialist during his active duty period. The Veteran has also reported that he "was injecting [himself] with Demerol while in the service overseas." See September 2004 Risk Factors for Hepatitis Questionnaire. Post-service treatment records confirm that the Veteran did have a heroin habit in the 1970's, along with cocaine, LSD, and barbiturates. See March 1998 VA discharge evaluation. On his September 2004 Risk Factors for Hepatitis Questionnaire, the Veteran confirmed that his heroin usage from 1970 to 1975 was intravenous, and that he also used intranasal cocaine from 1978 to 1983. A VA "Fast Letter" issued in June 2004 (Fast Letter 04-13, June 29, 2004) reported 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). The letter further stated that Hepatitis C was potentially transmissible through needles reused for tattoos, body piercing, and acupuncture. Id. The post-service treatment records also document the Veteran's initial diagnosis of hepatitis C and anemia. A discharge report from a VA hospital in Long Beach, California, dated in August 1998, note the Veteran's diagnoses as including alcohol abuse, cirrhosis and anemia. Lab results dated in January 1999 are positive for hepatitis C. Records throughout 2000 refer to the Veteran's history of hepatitis C and note that he was not a candidate for hepatitis therapy due to psychological problems. In June 2003, VA records related to an initial evaluation at a Phoenix VA medical facility note the Veteran's medical history as including both hepatitis and anemia. Several years later, in April 2007, the Veteran underwent a treatment regimen for hepatitis C, which included forty weeks of Intron/Ribavirin. During the course of this treatment, baseline anemia was noted and the Ribavirin dosage was decreased. See June 2007 VA outpatient treatment note. By the time of the October 2008 VA examination, the Veteran was noted to be currently no longer on any treatment for his hepatitis C. The diagnosis at that time was hepatitis C and normochromic/normocytic anemia. Thus, the medical records establish that there was no diagnosis of either hepatitis C or anemia in service, and that anemia was first noted in August 1998, with hepatitis C first noted in January 1999, both nearly more thirty years after his May 1969 discharge from active service. In August 2011, the VA examiner, having physically examined the Veteran, reviewed his service treatment records, and reviewed his post service clinical records, opined that the Veteran's hepatitis C and complications of anemia are not caused by or the result of the Veteran's active military service. The examiner acknowledged that the Veteran was a medic in service, but also reported that the Veteran "had multiple risk factors, including sexual contact, blood exposure, illicit drug use, and extreme alcoholic intake over a prolonged period of time." The examiner also noted that a historic view of the Veteran's record establishes that his liver disease did not manifest until many years following his service. In fact, the VA examiner pointed out that while there were entries related to urologic problems and psychiatric problems, there was no mention during service of exposure to or diagnosis of hepatitis C. It was on this basis that the VA examiner rendered the opinion that the hepatitis C and resulting anemia was not caused by or a result of the Veteran's active service. In sum, here there is no evidence that either Hepatitis C or anemia manifested during or within one (1) year of his separation from active service. The medical evidence of record does not link the Veteran's Hepatitis C or his anemia to his military service. Moreover, to the extent that the Veteran contends that the anemia is secondary to the hepatitis C, while the medical evidence may support this contention, since hepatitis C is found as not having been incurred in service, there is no basis upon which to grant service connection under 38 C.F.R. § 3.310. The Board recognizes that the Veteran sincerely believes that his hepatitis C was incurred in service due to his work as a medical specialist. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to describe his symptoms, whether the symptoms the Veteran experiences are in any way related to his current disabilities is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Likewise, the Veteran does not have the medical expertise required to determine whether his hepatitis C or anemia were incurred in service or incurred due to any in-service incident. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the Veteran's in-service work as a medical specialist has been considered, but the Veteran's hepatitis C, as noted above, can have many causes, and medical testing and medical expertise are needed to determine nature and etiology. The Board accepts that the Veteran may have experienced exposure to blood in service. However, this fact alone does not establish that the Veteran incurred hepatitis C in service. Rather, having taken into account this fact, along with the Veteran's known and admitted intravenous drug usage, coupled with the long duration of time between the Veteran's separation from service and his initial diagnoses of hepatitis C and anemia, the medical examiner found that the Veteran's current disabilities were not caused by his active service. The Board finds that the Veteran is not competent to render a medical opinion on the onset and etiology of his current hepatitis C and anemia. The 2011 VA examiner's opinions are the only medical opinions, based upon a review of the complete claims file, addressing the relationship between the current disabilities and active service. Thus, such medical opinions are of greater probative value than the Veteran's lay contentions. Id. Further, the Board recognizes that anemia is a noted chronic disease under 38 C.F.R. § 3.309. However, as noted above, the first notation of anemia in the record was nearly thirty years following service. Consideration of this claim on the basis of continuity of a chronic disease noted in 38 C.F.R. § 3.309 is, therefore, not warranted, as there was no notation of anemia in service or within one year following separation. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In conclusion, the competent evidence does not reveal a nexus to hepatitis C or anemia occurring in service. Further, the competent evidence does not indicate that the Veteran had an initial notation of either hepatitis C or anemia during service or within the year following his separation. Moreover, because hepatitis C is not being found as service-connected, there is no basis upon which to grant service connection for anemia secondarily. While the Board has considered the Veteran's lay contentions as to the etiology of his current disabilities, the Board has accorded greater weight to the balance of the probative medical evidence of record. Although the Veteran might sincerely believe that his disabilities are related to service, he, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. As such, service connection must be denied for both hepatis C and anemia. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable concerning this issue. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for anemia is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs