Citation Nr: 1334970 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-16 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1969. The Veteran also had several periods of active duty for training (ACDUTRA) to include from January 7 to January 11, 2002 and from February 1 to February 17, 2002. The latter period of ACDUTRA included service in Nicaragua. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified at December 2008 Board personal hearing in Albuquerque, New Mexico (Travel Board). The hearing transcript has been associated with the claims file. In a prior July 2012 decision, the Board denied service connection for hepatitis C. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). In January 2013, the Court vacated the July 2012 decision and remanded the case to the Board for action consistent with the terms of a January 2013 Joint Motion for Remand. The Board remanded the appeal in April 2013 for additional development that included a request to obtain outstanding National Guard service treatment records and for a VA examination and opinion to address hepatitis C. This was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran was diagnosed with hepatitis C in 2002, which resolved in 2003. 2. The Veteran does not have a current diagnosis of hepatitis C. CONCLUSION OF LAW The criteria for service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1112, 1110, 1113, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.303 (2013) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. In a May 2006 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The May 2006 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, Army National Guard service treatment records, VA and private treatment records, VA examinations and medical opinions, and the Veteran's statements, testimony, and other lay evidence. A May 2013 VA examination, May 2013 VA opinion, and August 2013 independent medical opinion address service connection for hepatitis C. 38 C.F.R. § 3.159(c)(4) (2013). 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 Board finds that the VA examination and the medical opinions obtained are adequate because the examination was performed by a medical professional and included laboratory testing for hepatitis C, and the opinions were based on a review of the record and history and current testing results. Moreover, May 2013 and August 2013 opinions answered the questions asked in the April 2013 remand order, and the examiners provided supporting reasons for the medical opinions offered based on findings from the medical record. See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). For these reasons, the Board finds that the May 2013 VA opinion and August 2013 independent medical opinion obtained complied with the directives of the April 2013 remand order. See Stegall, 11 Vet. App. at 271. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion has been met. 38 C.F.R. § 3.159(c)(4). The May 2013 VA examiner noted that the Veteran reported treatment in 2005 for hepatitis, but he stated that those records were not submitted. Upon further questioning by the VA examiner, the Veteran stated that his private physician, Dr. P., had to be contacted directly for that information. The Board finds that relevant treatment records from Dr. P. and from the Rio Grande Medical Group, dated from 2002 to 2005, are of record. While these records show that Dr. P. treated the Veteran for hepatitis C in 2002 and 2003, hepatitis C was shown to be in remission from late 2003 to 2005 based on laboratory blood testing. For these reasons, the Board finds that the Veteran is not credible in reporting treatment for hepatitis C in 2005, and the Board finds that his statement was not made for the purpose of identifying outstanding medical records for VA to obtain, but was instead reported for compensation purposes. Moreover, because the Veteran has not identified treatment for hepatitis C since the initiation of his May 2006 claim, and because the weight of the evidence shows no current diagnosis of hepatitis C, the Board finds that a remand the alleged 2005 treatment for hepatitis C is not necessary for disposition of the claim. See McClain v. Nicholson, 21 Vet.App. 319, 312 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.). An August 2013 independent medical examiner opined, based on the immediacy of the Veteran's hepatitis C diagnosis in 2002, shortly after 2002 National Guard service, without "lag time" for viral replication, that hepatitis C was consistent with a pre-existing infection. While the VA opinion does not state whether pre-existing hepatitis C was clearly and unmistakably not aggravated in service, because the weight of the evidence shows that the Veteran does not have a current diagnosis of hepatitis C, the Board finds that an additional remand for treatment records dated prior to the May 2006 claim for service connection, and for additional medical opinion evidence regarding aggravation would not assist the Veteran in substantiating his claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Accordingly, the Board finds that there is no outstanding evidence that needs to be obtained in this case, and the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may 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). Active military, naval, or air service includes any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IADT) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d) (2013). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(1) and (3). Presumptive periods do not apply to ADT or IADT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IADT. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). Hepatitis C is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). An injury or disease incurred during active service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the person's own willful misconduct, and this includes an HVC infection due to abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m) (2013). Several risk factors for hepatitis C have been recognized by VA. These include: transfusion of blood or blood product before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, intravenous drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. VA Training Letter 01-02 (April 17, 2001); VA Training Letter 98-110 (November 30, 1998). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. The Veteran contends in various lay statements and during December 2008 Board hearing testimony that hepatitis C is related to accidental exposure to blood products during a January 2002 combat life savers course during which he received training administering IVs, or during routine vaccinations he received prior to a February 2002 deployment in Nicaragua where the medical specialists were allegedly reusing needles. The Veteran is competent to describe possible risk factors for contracting hepatitis C in service. The Board finds, however, that the Veteran's lay statements and testimony are only partially credible. In a July 2005 statement, the Veteran reported during the combat life savers course, he and other attendees practiced administering IVs on each other, that he was "poked '5' times with five different needles" and he testified that during one attempt at removing an IV, blood got all over his hand and some blood got on his arm. The Board finds that the Veteran has credibly reported that he practiced administering IVs in a combat life savers course, as this is supported by lay statements from witnesses that are of record, but finds that the Veteran did not specifically allege that IV needles were being reused during this course in either his July 2005 statement or Board hearing testimony. Thus, the Board finds that the Veteran has not credibly identified the use of unclean needles during a combat life savers course, but has credibly identified contact with blood while removing an IV needle. The Veteran has alleged that contaminated needles were used for vaccinations prior to his February 2002 deployment to Nicaragua. The Veteran did not report witnessing the use of contaminated needles for his own vaccinations, but testified in December 2008 that he found out from a friend that they were reusing needles at the location where he was vaccinated, and indicated that he did not know if he was one of the veterans on which a contaminated needle was used. The Veteran has submitted lay evidence from two witnesses with regard to vaccinations administered for deployment to Nicaragua in 2002, one who personally witnessed a medical specialist using one syringe on ten different soldiers in front of her in line, and a second statement from a person who overheard, during redeployment screening, that the same syringe was being used on more than one individuals for vaccinations. Thus, the Board finds that the Veteran has credibly identified the alleged use of shared needles at the location in which he received his vaccinations. The Veteran has alternately identified other possible means of transmission, including unprotected sexual encounters at various ports during his Navy service from 1965 to 1969 and possible exposure during his duties as a ship's barber during his Navy service. The Board finds that he is credible in reporting unprotected sex in service but has not provided sufficient information indentifying any incident of exposure during his duties as a ship's barber. Based on the forgoing, the Board finds that that the Veteran has provided competent and credible evidence identifying in-service hepatitis C risk factors of, possible blood exposure while removing an IV needle during a combat life saver course in 2002, the alleged use of shared needles at the location in which he received his vaccinations in 2002, as well as exposure via unprotected sex from 1965 to 1969. Despite the Veteran's identification of risk factors contracting hepatitis C in service, the Board finds that the Veteran does not have a current diagnosis of hepatitis C. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the instant case, the weight of the evidence shows that the Veteran has no current diagnosis of hepatitis C. Therefore, service connection for hepatitis C is not warranted. The Board finds that the Veteran was diagnosed with hepatitis C in 2002, which later resolved in 2003. Private treatment records show that the Veteran was first diagnosed with hepatitis C after a routine blood screen in August 2002 revealed elevated liver enzymes; however, private treatment reports dated in October 2003, December 2003, March 2004, July 2004, and February 2005 and a December 2008 letter from. A.C., PAC show that hepatitis C was remission based on HVC blood testing, and that the viral load was undetectable. While the Veteran submitted an April 2006 opinion from Dr. K.B. indicating that hepatitis C was due to probable in-service exposures, both the diagnosis and opinion appear to be based on a history as provided by the Veteran, and not on examination or contemporaneous medical evidence as to the Veteran's treatment. Medical opinions premised upon an unsubstantiated account of a claimant are of no probative value and does not serve to verify the occurrences described. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As the Board will discuss further, because current laboratory testing shows that the Veteran does not have current hepatitis C, the Board finds that Dr. K.B.'s diagnosis and opinion are not probative. The Veteran was provided a medical examination in October 2010 to confirm whether he had a current diagnosis of hepatitis C. A January 2013 Joint Motion for Remand provides, however, that the October 2010 VA examination report is inadequate. In that regard, the October 2010 VA examiner stated that the Veteran did not perform the ordered blood studies for hepatic function and hepatitis C activity, and when asked to provide a diagnosis, the VA examiner stated that activity was not determined because the Veteran did not perform appropriate studies as requested. However, the VA examiner provided no explanation for why the Veteran did not perform the tests, and it is unclear from the report whether the information needed to render the requested opinion could have been obtained. Accordingly, the Board remanded the appeal for a new VA examination and opinion to assist in determining if the Veteran has a current diagnosed hepatitis C. The Veteran subsequently submitted an April 2013 patient chart from the Rio Grande Medical Group, which included laboratory testing for hepatitis C antibody, which was shown to be "reactive." The Veteran was afforded a May 2013 VA examination, which included a physical examination and relevant confirmatory testing for hepatitis C, as well as a review of the claims file. The VA examiner opined, in pertinent part, that confirmatory testing for hepatitis C, specifically, HCV polymerase chain reaction (pcr) testing done in May 2013 was negative, meaning that the Veteran did not have hepatitis C at the time of the VA examination. The examiner further stated that all of the Veteran's liver function tests were normal, making liver involvement much less likely. The VA examiner also addressed the April 2013 findings from Rio Grande Medical Group, stating that the positive lab test on April 2013 may have been a screening test and a false positive as a liver function tests were normal at that time. The VA examiner explained that the private physician did not order a HCV pcr, which was the confirmatory test for hepatitis C. The Appeals Management Center requested an independent medical opinion in August 2013. The independent medical examiner opined, based on a review of the claims file, that the Veteran's hepatitis C was in remission. She reasoned that there was a negative viral load, normal blood work, and normal liver function tests. She opined that although a November 2010 liver ultrasound observed a mild fatty liver, this was at least as likely as not consistent with a normal aging process rather than infection. The examiner stated that she was in full agreement with the May 2013 opinion that confirmatory testing for hepatitis C was negative, meaning the Veteran did not have hepatitis C, that normal liver function tests made liver involvement much less likely, and that April 2013 positive lab tests may have been a false positive. The examiner, therefore, opined that claimed hepatitis C remained undetectable and was less likely than not incurred or caused by service. The Board finds that May 2013 VA opinion and August 2013 independent medical opinions provide competent, credible, and probative evidence addressing whether the Veteran has a current diagnosis of hepatitis C as they were provided by physicians, were based on confirmatory testing for hepatitis C in the form of May 2013 HCV pcr testing and May 2013 liver function testing, and adequately addressed the April 2013 private medical evidence showing reactive hepatitis C antibody. Both medical opinions show that the Veteran does not have a current diagnosis of hepatitis C, and the VA and independent medical examiners provided adequate rational for the opinions rendered. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Nieves-Rodriguez, 22 Vet. App. at 295 (holding "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). The Board finds that May 2013 and August 2013 opinions are consistent with earlier December 2008 evidence from A.C., PAC, showing that that hepatitis C was in remission based on HVC blood testing, and that the viral load was undetectable. For these reasons, the Board finds that the weight of the evidence shows that the Veteran does not have a current diagnosis of hepatitis C, therefore, service connection is not warranted. Because the Veteran does not have a current diagnosis of hepatitis C, the Board need not address the question of in-service incurrence or aggravation of hepatitis C. The Board notes, however, that competent, credible, and probative evidence provided by a May 2013 VA opinion and August 2013 independent medical opinion indicate that previously diagnosed hepatitis C was not incurred or aggravated in service, and is not related to identified in-service risk factors of possible blood exposure during a combat life saver course in 2002, the alleged use of shared needles during 2002 vaccinations, or unprotected sex during service from 1965 to 1969. For the reasons discussed above, the Board finds that the preponderance of the evidence is against finding that the Veteran has currently diagnosed hepatitis C. The appeal is accordingly denied. As the preponderance of the evidence is against the Veteran's claim, service connection is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for hepatitis C is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs